The Secretary of Agriculture is authorized by the Agricultural Marketing Act of 1946 (AMA), as amended (7 U.S.C. 1621, et seq. ), to provide voluntary Federal dairy grading and inspection services to facilitate the orderly marketing of dairy products and to enable consumers to obtain the quality of dairy products they desire. The AMA also provides for the collection of reasonable fees from users of the Federal dairy grading and inspection services that cover the cost of providing these services. The hourly fees are established by equitably distributing the program's projected operating costs over the estimated hours of service—revenue hours—provided to users of the service on a yearly basis. Program operating costs include employee salaries and benefits—which account for nearly 80 percent of the non-travel related operating costs—training, and administrative costs. Periodically, the fees must be adjusted to ensure that the program remains financially self-supporting.

AMS regularly reviews its user-fee-financed programs to determine if the fees are adequate. The most recent review determined that the existing fee schedule, effective January 4, 1998, would not generate sufficient revenues to recover operating costs for current and near-term periods while maintaining an adequate reserve balance. Costs in FY 2004 are projected at $5.95 million. Without a fee increase, FY 2004 revenues are projected at $5.71, and the trust fund balance would be $2.09 million. With a fee increase, FY 2004 revenues are projected at $6.14 million, and the trust fund balance would be $2.52 million.

Employee salaries and benefits account for approximately 80.0% of the non-travel related operating budget. The majority of travel costs are billed directly to the users of services provided by the Dairy Grading Branch on a cost-recovery basis. Since the January 4, 1998, fee increase, Federal salaries and location adjustments have increased annually. The average salary has increased approximately 17.4% during this 6-year period. As a result of these increases, annual salary and benefit costs to the program are approximately $556 thousand more today than in 1998. Inflation has also increased the operational and administrative costs associated with this program, and a fee increase is necessary to sustain the program. If the short fall is allowed to continue, it will place the Dairy Grading Branch in an unstable financial position that will adversely affect its ability to provide dairy grading and inspection services.

This proposal will also generate funds to automate current business practices of the Dairy Grading Branch that will minimize the extent of future fee increases. Automated business practices will also enhance customer services through improvements in office efficiency and timeliness of providing grading and inspection services and information to users of dairy grading and inspection services.

In view of these considerations, AMS will increase the hourly fees associated with Federal dairy grading and inspection services. The hourly fee for resident services provided between the hours of 6:00 a.m. and 6:00 p.m. will increase from $51.00 to $57.00 per hour. The hourly fee for nonresident services between the hours of 6 a.m. and 6 p.m. will increase from $56.00 to $62.00 per hour. The hourly fee for resident services provided between 6 p.m. and 6 a.m. will be $61.60 and for nonresident services the fee will be $68.20. For services performed in excess of 8 hours per day and for services performed on Saturday, Sunday, and legal holidays, 1 1/2 times the base fee would apply, and as a result, the fee will increase from $84.00 per hour to $93.00 per hour.

This action has been determined to be “not significant” for purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget (OMB).

Pursuant to the requirements set forth in the Regulatory Flexibility Act (5 U.S.C. 601, et seq. ), the AMS has considered the economic impact of this action on small entities. It has determined that its provisions would not have a significant economic effect on a substantial number of small entities.

AMS provides voluntary Federal dairy product grading and inspection services to about 350 users of services provided by the Dairy Grading Branch. Manufacturing operations participating in the voluntary plant inspection program have their facility inspected against established construction and sanitation requirements. Dairy products manufactured in facilities complying with the USDA requirements are eligible to be inspected and graded against official quality standards and specifications established by AMS and certain contract provisions between buyer and seller. Products inspected or graded by the Dairy Grading Branch have certificates issued concerning the product's quality and condition. Many of these users are small entities under the criteria established by the Small Business Administration (13 CFR 121.201). This rule will raise the fee charged to businesses for voluntary inspection and grading services for dairy and related products and the evaluation of food processing equipment. Even though the fee will be raised, the increase is approximately 10.7% for nonresident service and 11.8% for resident service and will not significantly affect these entities. These businesses are under no obligation to use these voluntary user-fee based services, and any decision on their part to discontinue the use of the services would not prevent them from marketing their products. The AMS estimates that overall this rule would yield an additional $522,000 annually. This action reflects certain fee increases needed to recover the cost of inspection and grading services rendered in accordance with the Agricultural Marketing Act.

The AMS regularly reviews its user-fee financed programs to determine if fees are adequate and if costs are reasonable. The existing fee schedule will not generate sufficient revenues to cover program costs while maintaining an adequate reserve balance (four months of costs) as called for by Agency policy. Without a fee increase, total revenue projections—including travel revenue—for Fiscal Year 2004 would be $5.71 million. Total costs—including travel costs—for the same period of time are projected to increase to $5.95 million. The shortfall, if allowed to continue, would translate into a trust fund balance of $431 thousand or 0.8 months of operating reserve at the end of FY 2007, which is below the Agency policy requirement.

This action raises the hourly fees charged to users of Federal dairy inspection and grading services. AMS estimates this action will provide the Dairy Grading Branch an additional $522 thousand annually. This will generate revenue to recover program costs, automate business practices to minimize the extent of future fee increases, and enhance customer services through improvements in office efficiency and timeliness of providing grading and inspection information to users of these services.

This action has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies unless they present an irreconcilable conflict with this rule. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of this rule.

This action would not impose any additional reporting or recordkeeping requirements on users of Federal dairy grading and inspection services.

AMS published a proposed rule in the Federal Register on October 3, 2003 (68 FR 57882) to increase the fees for Federal dairy grading and inspection services and requested comments by November 3, 2003. The Agency did not receive comments on this proposal.

Living trusts have become an increasingly popular way for individuals to transfer assets outside of probate while retaining control of the funds during their lifetime. Where a grantor establishes a share account with funds that are subject to a separate living trust agreement, share insurance coverage is provided in accordance with NCUA's rules that govern revocable trust accounts. 12 CFR 745.4. The NCUA believes, based on its experience and upon the experience of the FDIC, that many persons who have established living trust accounts do not understand the impact under the current rules of a defeating contingency on the availability of separate insurance coverage for beneficial interests in the account, even for “qualifying beneficiaries” (the spouse, child, grandchild, parent or sibling of the grantor).

The rules were designed to cover a straightforward “payable on death” account, sometimes simply referred to as a “POD” account, that provides for the payment of any balance remaining in an account upon its owner's death to specified beneficiaries. Evidence of the intent of the account owner to pass funds to one or more beneficiaries may be as simple as a designation in the account signature card such as “POD.” By contrast, a living trust arrangement involves a separate, often complex trust document that may specify that an identified beneficiary's right to receive some portion of the account balance is dependent upon certain conditions.

Currently, if the interest of a qualifying beneficiary in an account established under the terms of a living trust agreement is contingent upon fulfillment of a specified condition, referred to as a defeating contingency, separate insurance is not available for that beneficial interest. Instead, the beneficial interest would be added to any individual account(s) of the grantor and insured to a maximum of $100,000. Because the coverage for these types of accounts is under the same rules that govern a simple “payable on death” account, members and credit unions sometimes mistakenly believe that interests in living trusts are automatically insured up to $100,000 per qualifying beneficiary.

An example of a defeating contingency is where an account owner names his son as a beneficiary but specifies in the living trust document that his son's ability to receive any share of the trust funds is dependent upon him successfully completing college. Another common example is where a grantor's will provides that funds in the living trust account can be used to satisfy a legacy made in the will. A third example is where the interest of one beneficiary is dependent upon another beneficiary's surviving the grantor. In each case, the current rule operates to prevent separate insurance coverage, even for a qualifying beneficiary, because his or her interest is contingent.

Even though the existing rules contain a definition of a defeating contingency and an explanation of how such a contingency can defeat separate insurance coverage, our experience, consistent with that of the FDIC, is that the operation of the rule is not widely understood. NCUA recognizes that the rules governing the insurance of living trust accounts are complex and confusing. The FDIC reports that it has had to deny separate insurance coverage for some beneficiaries of living trusts in cases where it was clear that the grantor was not aware of the impact of language in the trust agreement. NCUA staff have reviewed recent examples of trust agreements that appear to have inadvertently created defeating contingencies that would thwart separate insurance for otherwise qualifying beneficiaries. In addition, the current rules may require a detailed review of the trust documents to determine if a defeating contingency exists. This effort is both difficult and time consuming.

The changes will minimize confusion about the application of NCUA's insurance rules to these types of accounts and maintain parity with FDIC insurance on similar accounts at banks and savings associations. The policy of the NCUA Board is to maintain parity with the FDIC, since the account insurance funds administered by both agencies are backed by the full faith and credit of the Federal Government. NCUA believes it important that members of the public who use living trust accounts for the future transfer of ownership of family assets without loss of control during the owner's life receive the same protection, whether the accounts are maintained at credit unions or other federally insured institutions.

NCUA has revised the current living trust account rules to provide for insurance coverage of up to $100,000 per qualifying beneficiary who, as of the date of a credit union's failure, would become entitled to the living trust assets upon the owner's death. While this approach provides insurance coverage for qualifying beneficial interests irrespective of defeating contingencies, a beneficiary's trust interest that is dependent upon the death of another trust beneficiary will still not qualify for separate insurance. If a beneficiary's interest is subordinate only to a life estate of another beneficiary, that interest will be insured. The amended rule allows for separate insurance for both the life estate and the remainder interest for qualified beneficiaries.

An example that illustrates the basic rule is where an account established under a living trust provides that the trust assets go in equal shares to the grantor's three children upon the grantor's death. This account would be eligible for $300,000 of deposit insurance coverage. The coverage would still be $300,000 even if the trust provides that the funds would go to the children only if each graduates from college before the owner's death because defeating contingencies will no longer be relevant for deposit insurance purposes.

Another example would be where a living trust provides that the owner's spouse becomes the owner of the trust assets upon the owner's death but, if the spouse predeceases the owner, the three children then become the owners of the assets. In this case, if the spouse is alive when the credit union fails, the account will be insured up to a maximum of $100,000, because only the spouse is entitled to the assets upon the owner's death. If at the time of the credit union failure, however, the spouse had predeceased the owner, then the account would be eligible for up to $300,000 coverage because there would be three qualifying beneficiaries entitled to the trust assets upon the owner's death.

Consistent with the FDIC's position, the NCUA has also determined not to require a credit union to maintain records disclosing the names of living trust beneficiaries and their respective trust interests. The FDIC solicited comment specifically on this matter and concluded that to do so would be unnecessary and burdensome. The NCUA Board concurs with that judgment, recognizing that a grantor may elect to change the beneficiaries or their interests at any time before his or her death and that requiring a credit union to maintain a current record of this information is impractical and unnecessarily burdensome. The general principles governing share insurance coverage in NCUA's regulations, however, require that the records of the credit union disclose the basis for any claim of separate insurance. 12 CFR 745.2(c). This obligation may be met if the title of the account or other credit union records refer to a living trust. The final rule makes reference to this fact, but specifically disclaims any requirement that the credit union's records must identify beneficiaries or disclose the amount or nature of their interest in the account.

NCUA believes the final rule achieves two important objectives: simplifying the existing rule and providing consistency in how insurance coverage is determined for all types of revocable trust accounts. With the amendment, both living trust accounts and “payable on death” accounts will have insurance coverage calculated in the same fashion. In each case, coverage is based upon the interest of the beneficiaries who will receive the account funds when the owner dies, determined as of the date of the credit union's failure, regardless of any contingencies or conditions affecting those interests. In addition, the amendment will provide credit unions and their members with a better understanding of the share insurance coverage rules and will help to eliminate the present confusion surrounding the coverage of living trust accounts.

The amendment does not change the way in which non-qualifying beneficiaries are treated for share insurance purposes. As is the case with traditional revocable trust accounts, a beneficiary must be the spouse, child, grandchild, parent or sibling of the grantor in order to qualify for separate insurance coverage. The interest of any non-qualifying beneficiary will be added to any other single-ownership or individual funds of the grantor and insured to a maximum of $100,000.

Living trusts sometimes provide for a life estate interest for designated beneficiaries and a remainder interest for other beneficiaries. The final rule addresses this situation by deeming each life estate holder and each remainder beneficiary to have an equal interest in the trust assets and provides up to $100,000 coverage per qualifying beneficiary. For example, assume a grantor creates a living trust providing for a spouse to have a life estate interest in the trust assets with the remaining assets going to their two children upon the spouse's death. The assets in the trust are $300,000 and a living trust account is opened for that full amount. Unless otherwise indicated in the trust, the NCUA would deem each of the beneficiaries to own an equal share of the $300,000, and the full amount would be insured. This result would be the same even if the spouse has the power to invade the principal of the trust, because, under the amended rule, defeating contingencies are no longer relevant for insurance purposes.

Another example would be where the living trust provides for a life estate interest for the grantor's spouse and remainder interests for two nephews. As in the preceding example, each beneficiary would be deemed to have an equal ownership interest in the trust assets, unless there were an indication specifying different ownership interests. Here the life estate holder is a qualifying beneficiary, the grantor's spouse, but the remainder beneficiaries, the grantor's nephews, are not. As such, assuming an account balance of $300,000, the living trust account would be insured for at least $100,000 because the grantor's spouse is a qualifying beneficiary. The $200,000 attributable to the grantor's nephews would be insured as the grantor's single-ownership funds. If the grantor has no other single-ownership funds at the same credit union, then only $100,000 would be insured. Thus, the $300,000 in the living trust account would be insured for a total of $200,000 and $100,000 would be uninsured. The NCUA believes this is a simple, balanced approach to insuring living trust accounts where the living trust provides for one or more life estate interests and is also consistent with the FDIC's approach.

The interim rule makes a corresponding change to Example 4, under part B of the appendix to part 745, to reflect this amendment. It removes language that had been in that example discussing the need to determine whether a defeating contingency adds an example to illustrate the operation of the rule in cases involving a life estate and remainder interests.

The Administrative Procedure Act requires that an agency must provide an opportunity for public comment before issuing a final rule unless it finds for “good cause” that public comment is impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(B). The NCUA Board has determined that public comment is unnecessary and contrary to the public interest because: The rule preserves parity with recently amended account insurance rules administered by the FDIC, 69 FR 2825 (January 21, 2004); the rule benefits credit union members and employees by simplifying how to determine the amount of coverage available on a commonly used account; it increases the amount of coverage that is available for the benefit of credit union members; and it does not prejudice credit union members or credit unions or require changes to current practices. Nevertheless, this is an interim final rule, and the Board will accept comments for a period of 60 days following the date of publication in the Federal Register . All comments will be considered and the rule may be changed in light of the comments received.

To avoid confusion and preserve parity with the FDIC, this interim rule will become effective on April 1, 2004, the beginning of the next calendar quarter following publication in the Federal Register . Consistent with the FDIC's approach, the rule will apply as of that date to all living trust accounts unless, upon the failure of an insured credit union, a member who established a living trust account prior to April 1, 2004, elects coverage under the previous living trust account rules. If a credit union fails between the date of publication in the Federal Register and April 1, 2004, NCUA will apply the final rule if doing so will result in greater coverage for a living trust account.

The Regulatory Flexibility Act requires NCUA to prepare an analysis to describe any significant economic impact a proposed rule may have on a substantial number of small credit unions, defined as those under ten million dollars in assets. This rule only clarifies the share insurance coverage available to credit union members, without imposing any regulatory burden. The final amendments would not have a significant economic impact on a substantial number of small credit unions, and, therefore, a regulatory flexibility analysis is not required.

NCUA has determined that the final rule would not increase paperwork requirements under the Paperwork Reduction Act of 1995 and regulations of the Office of Management and Budget.

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order. The final rule would not have substantial direct effects on the States, on the connection between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. NCUA has determined that this rule does not constitute a policy that has federalism implications for purposes of the executive order.

The NCUA has determined that this final rule would not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999, Pub. L. 105-277, 112 Stat. 2681 (1998).

The Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) provides generally for congressional review of agency rules. A reporting requirement is triggered in instances where NCUA issues a final rule as defined by section 551 of the Administrative Procedure Act. 5 U.S.C. 551. NCUA has obtained the determination of the Office of Management and Budget that this rule is not a major rule for purposes of the Small Business Regulatory Enforcement Fairness Act of 1996.

On May 10, 2001, the FAA issued AD 2001-10-07, Amendment 39-12233 (66 FR 27592, May 18, 2001). That AD requires initial and repetitive inspections of certain stage 1 HPT rotor disks installed on CF6-80C2 turbofan engines for cracks in the bottoms of the dovetail slots. That AD resulted from a report of an uncontained failure of an engine during a high-power ground run during maintenance. On January 2, 2003, we issued AD 2003-01-05, Amendment 39-13016 (68 FR 1519, January 13, 2003). That AD requires initial and repetitive inspections of certain stage 1 HPT rotor disks installed on CF6-80A series turbofan engines for cracks in the bottoms of the dovetail slots. AD 2003-01-05 resulted from a report of an uncontained failure of a CF6-80A series engine during climb. The manufacturer investigated those two failures as well as findings of cracks on other disks to determine the root cause of the failures. Those investigations showed that the cracks started from tool marks, broach burrs, damage sustained from improper handling and processing, and other unknown causes. The manufacturer and the FAA have determined that those conditions could also exist on stage 1 HPT rotor disks that are installed in certain CF6-80E1 series turbofan engines. Those conditions, if not corrected, could result in cracks in the bottoms of the dovetail slots that could propagate to failure of the disk and cause an uncontained engine failure.

Since we issued those ADs, the manufacturer developed a rework procedure to eliminate the root causes of the cracks. This rework procedure removes potentially damaged material from the breakedge and makes the geometry less susceptible to damage that could lead to cracks in the bottoms of the dovetail slots and subsequent failure. As part of the rework procedure, the disks are remarked with a different part number. The rework replaces the current requirements for initial and repetitive inspections on those disks for which rework is defined.

Stage 1 HPT rotor disks, part number (P/N) 9367M45G02, are an early configuration, and no parts are believed to be in service. These disks do not have rework procedures defined. Therefore the repetitive inspections remain for any disks that may still be in service.

The manufacturer developed a rework procedure for stage 1 HPT rotor disks, P/N 1862M23G01, to address cracks in the forward flange of the thermal shield by machining the profile of the slot bottom. A limited number of these disks were released to the field before the program was discontinued. These disks also do not have rework procedures defined because the chamfered breakedge rework machining was not developed for this limited number of parts.

We are considering additional rulemaking to add eddy current inspections of the bottom of the CF6-80A dovetail slots and the CF6-80A and CF6-80C2 chamfer surfaces to the Airworthiness Limitations Section of the Instructions for Continued Airworthiness as part of the FAA's “enhanced-disk inspection initiative.”

We have reviewed and approved the technical contents of the following GE Service Bulletins (SBs) and Alert Service Bulletin (ASB) that describe procedures for removing, inspecting, and reworking certain stage 1 HPT rotor disks:

• SB No. CF6-80E1 S/B 72-0251, dated January 22, 2004;

• SB No. CF6-80A S/B 72-0779, Revision 1, dated January 22, 2004;

• SB No. CF6-80A S/B 72-0788, Revision 2, dated December 17, 2003;

• ASB No. CF6-80C2 S/B 72-A1026, Revision 2, dated January 22, 2004;

• SB No. CF6-80C2 S/B 72-1089, Revision 2, dated December 18, 2003.

The differences between this AD and the service information are as follows:

• GE SB No. CF6-80A S/B 72-0779, Revision 1, dated January 22, 2004, applies to certain CF6-80A stage 1 HPT rotor disks and requires an initial inspection at next exposure. However, this AD requires only the stage 1 HPT rotor disks, P/N 9367M45G02, to have only an initial inspection at the next shop visit, subject to cycle limitations and subsequent repetitive inspections at each piece part exposure. This AD requires the other HPT rotor disks, to which the SB applies, to have the rework defined in SB No. CF6-80A S/B 72-0788, Revision 2, dated December 17, 2003. This AD also requires the inspection of stage 1 HPT rotor disks, P/N 9367M45G02, which have zero cycles-since-new (CSN) before installation into the engine. The SB does not.

• GE ASB No. CF6-80C2 S/B 72-A1026, Revision 2, dated January 22, 2004, applies to certain CF6-80C2 stage 1 HPT rotor disks, and requires initial inspections of the stage 1 HPT rotor disks at the next shop visit. However, this AD requires only the stage 1 HPT rotor disks, P/N 1862M23G01, to have only an initial inspection at the next shop visit, subject to cycle limitations, and subsequent repetitive inspections at each piece-part exposure. This AD requires the other HPT rotor disks, to which this ASB applies, to have the rework defined in SB No. CF6-80C2 S/B 72-1089, Revision 2, dated December 18, 2003. The cycle limitations in the AD are based on the latest risk analysis for CF6-80A and CF6-80C2 engines where the ASB's cycle limitations are based on a risk analysis completed in 2001 for only CF6-80C2 engines. This AD also requires the inspection of stage 1 HPT rotor disks, P/N 1862M23G01, which have zero CSN before installation into the engine. The ASB does not.

• There are no differences between GE SB No. CF6-80A S/B 72-0788, Revision 2, dated December 17, 2003, and GE SB No. CF6-80C2 S/B 72-1089, Revision 2, dated December 18, 2003, and this AD except for the introduction of compliance cycle limitations.

• There are no differences between GE SB No. CF6-80E1 S/B 72-0251, dated January 22, 2004, and this AD.

The unsafe condition described previously is likely to exist or develop on other GE CF6-80 series turbofan engines of the same type design. We are issuing this AD to detect and prevent cracks in the bottoms of the dovetail slots that could propagate to failure of the disk and cause an uncontained engine failure. This AD requires rework of the dovetail slot bottom of certain stage 1 rotor disks. The disks must pass an inspection to qualify for the rework. Disks for which the rework has not been defined must continue to receive initial and repetitive inspections. In addition, this AD expands the population of affected engines and removes from service certain CF6-80E1 series disks. You must use the service information described previously to perform the actions required by this AD.

Since an unsafe condition exists that requires the immediate adoption of this AD, we have found that notice and opportunity for public comment before issuing this AD are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

On July 10, 2002, we issued a new version of 14 CFR part 39 (67 FR 47998, July 22, 2002), which governs our AD system. This regulation now includes material that relates to special flight permits, alternative methods of compliance, and altered products. This material previously was included in each individual AD. Since this material is included in 14 CFR part 39, we will not include it in future AD actions.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES. Include “AD Docket No. 2004-NE-05-AD” in the subject line of your comments. If you want us to acknowledge receipt of your mailed comments, send us a self-addressed, stamped postcard with the docket number written on it; we will date-stamp your postcard and mail it back to you. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it. If a person contacts us verbally, and that contact relates to a substantive part of this AD, we will summarize the contact and place the summary in the docket. We will consider all comments received by the closing date and may amend the AD in light of those comments.

We are reviewing the writing style we currently use in regulatory documents. We are interested in your comments on whether the style of this document is clear, and your suggestions to improve the clarity of our communications with you. You may get more information about plain language at http://www.faa.gov/language and http://www.plainlanguage.gov.

You may examine the AD Docket (including any comments and service information), by appointment, between 8:00 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. See ADDRESSES for the location.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that the 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. 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.

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “AD Docket No. 2004-NE-05-AD” in your request.

The FAA has received a report indicating that, during a test flight performed by the airplane manufacturer, a single primary flight computer (PFC) reset on a Boeing Model 777-300ER series airplane. The primary flight control system (PFCS) includes three PFCs, called channels. As a result of analyzing the data from the test flight, the airplane manufacturer was able to reproduce single, dual, and triple channel resets during lab testing of takeoff and landing scenarios. A triple channel reset forces the PFCS from normal mode into direct mode. Reversion to direct mode during autoland disconnects the autopilot. During Category IIIB autoland operations, loss of automatic rollout control in low visibility weather conditions could result in the airplane departing from the runway.

Additionally, if the PFCS reverts to direct mode after automatic speed brake deployment during any landing, the speed brakes will retract. If this occurs, the flightcrew must manually deploy the speed brakes. Unscheduled speed brake retraction during landing could result in a runway overrun, particularly if stopping distance is critical.

The PFC hardware and software configuration on Model 777-300ER series airplanes are identical to those on the affected Model 777-200 series airplanes (PFC hardware, part number (P/N) S251W700-103, and software, P/N 2769-PFC-900-00). Therefore, the affected Model 777-200 series airplanes may be subject to the same unsafe conditions. Model 777-300ER series airplanes are not yet type certificated; therefore, these airplanes are not subject to AD rulemaking. The airplane manufacturer is planning to revise the software of the PFCs on these airplanes before certification.

The FAA has reviewed TASKS 27-02-01-400-803, 27-02-01-000-801, and 27-02-01-400-802 of Chapter 27-02-01 of Boeing 777 Airplane Maintenance Manual (AMM), Document Number D633W101. The AMM describes procedures for removing all three existing PFCs having hardware P/N S251W700-103 and software P/N 2769-PFC-900-00, and installing serviceable PFCs having hardware P/N S251W700-102 and software P/N 2763-PFC-740-00. Accomplishment of the actions specified in the AMM is intended to adequately address the identified unsafe conditions.

Since unsafe conditions have been identified that are likely to exist or develop on other airplanes of the same type design that may be registered in the United States at some time in the future, this AD requires a revision to the Airplane Flight Manual (AFM) to (1) advise the flightcrew that Category IIIB autoland operations are prohibited and (2) warn the flightcrew of the potential for reversion of the PFCS to direct mode during takeoff or landing and its associated airplane effects. This AD also requires installation of a placard in the flight deck. This AD also provides an optional terminating action for the AFM revision and placard installation. The optional terminating action is required to be accomplished in accordance with the AMM described previously.

The AFM revision and placard required by this AD may be removed upon installation of PFC hardware, P/N S251W700-102, and software, P/N 2763-PFC-740-00, in all three PFCs. This PFC hardware/software configuration has been previously certified for Model 777 series airplanes. Boeing is currently developing new PFC hardware/software configurations, but we have not yet certified them. We may consider further rulemaking once these new hardware/software configurations have been certified.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2004-NM-28-AD.” The postcard will be date stamped and returned to the commenter.

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

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct unsafe conditions in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

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

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

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

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

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

Regulatory Information

On October 14, 2003, we published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulations; Rahway River, New Jersey, in the Federal Register (68 FR 59143). We received one comment letter in response to the notice of proposed rulemaking. No public hearing was requested and none was held.

The Conrail Bridge has a vertical clearance of 6 feet at mean high water and 11 feet at mean low water in the closed position.

The existing drawbridge operation regulations listed at 33 CFR 117.743, require the bridge to open on signal from April 1 through November 30, from 6 a.m. to 10 p.m. At all other times, the bridge shall open on signal if at least a four-hour notice is given.

The Conrail Bridge across the Rahway River is navigated predominately by small recreational vessels April through November.

The owner of the bridge, Consolidated Rail Corporation (Conrail), requested a change to the drawbridge operation regulations to allow the bridge to be operated from a remote location by a bridge/train dispatcher located at the Conrail Dispatch Office at Mount Laurel, New Jersey. The bridge will still operate the same; except, it will be done from a remote location. The on-scene bridge tender will be eliminated by this rulemaking.

It is expected that this final rule will relieve the bridge owner of the burden of crewing the bridge at all times while still meeting the reasonable needs of navigation.

The Coast Guard received one comment letter in response to the notice of proposed rulemaking. The comment letter was in objection to the proposed rule change stating that not having a drawtender in attendance at the bridge would not allow for the timely discovery of any conditions that may cause the bridge to become inoperative.

The bridge owner is required under 33 CFR 117.7 to keep the bridge in good operable condition at all times and to test the bridge operation at sufficient intervals to assure satisfactory operation. The Coast Guard believes that it is not necessary to keep the bridge crewed at all times and that the bridge owner's preventative maintenance schedule is sufficient to assure reliable operation of the bridge. As a result of the above, no changes have been made to this final rule.

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

This conclusion is based on the fact that the bridge will continue to open for vessel traffic at all times, except for the passage of rail traffic.

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

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

This conclusion is based on the fact that the bridge will continue to open for vessel traffic at all times, except for the passage of rail traffic.

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

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

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

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

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

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

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

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

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

We have analyzed this final rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction, from further environmental documentation. It has been determined that this final rule does not significantly impact the environment.

The S.R. 74 Bridge is owned and operated by the North Carolina Department of Transportation (NCDOT). NCDOT has requested a temporary deviation from the operating regulations to facilitate needed mechanical repairs to the bridge.

The work involves the machining of damaged trunnion shafts and the installation of a new bushing on the east side lift span of the bridge. To facilitate the repairs, the work requires immobilizing the east side lift span in the closed position to vessels while the west side lift span will be functional beginning 6 a.m. on February 12, 2004, through 10 p.m. on March 12, 2004. However, the bridge will not open for vessels from 10 p.m. to 6 a.m. on February 19 and each day from 10 p.m. to 6 a.m. on February 22 through February 27, to remove and install the bushing. The Coast Guard has informed the known users of the waterway of the full and partial closure periods for the bridge caused by the temporary deviation.

The District Commander has granted temporary deviation from the operating requirements listed in 33 CFR 117 Subpart A for the purpose of repair completion of the drawbridge. This temporary deviation allows the S.R. 74 Bridge, across the Atlantic Intracoastal Waterway mile 283.1, at Wrightsville Beach, NC, to operate half-leaf openings for vessels from 6 a.m. on February 12, 2004, through 10 p.m. on March 5, 2004, except from 10 p.m. to 6 a.m. on February 19 and each day from 10 p.m. to 6 a.m. on February 22 through February 27 the bridge will not open.

The New Jersey Transit Rail Operations railroad bridge has a vertical clearance in the closed position of 3 feet at mean high water and 8 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.709(b).

New Jersey Transit Rail Operations, requested a temporary deviation from the drawbridge operation regulations to facilitate repairs to the electrical control unit at the bridge. The bridge must remain in the closed position to perform these repairs.

Under this temporary deviation the New Jersey Transit Rail Operations railroad bridge may remain in the closed position from 7:30 a.m. on February 28, 2004 through 7:30 a.m. on March 1, 2004.

This deviation from the operating regulations is authorized under 33 CFR 117.35(a), and will be performed with all due speed in order to return the bridge to normal operation as soon as possible.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Notice and comment are unnecessary because this action is the removal of drawbridge operation regulations for a bridge that is now a fixed bridge that can not open.

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

The US1 (Point Street) Bridge has been rebuilt as fixed bridge and no longer opens for the passage of vessel traffic. The drawbridge operation regulations for the US1 (Point Street) Bridge; therefore, are unnecessary, and will be removed by this action.

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

This conclusion is based on the fact that the bridge no longer opens for vessel traffic; therefore, the drawbridge operation regulations are no longer necessary.

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

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

This conclusion is based on the bridge no longer opens for vessel traffic; therefore, the drawbridge operation regulations are no longer necessary.

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

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

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

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

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

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

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

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

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

We have analyzed this final rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction, from further environmental documentation. It has been determined that this final rule does not significantly impact the environment.

The AMTRAK Portal Bridge has a vertical clearance in the closed position of 23 feet at mean high water and 28 feet at mean low water. The existing drawbridge operation regulations are listed at 33 CFR 117.723(c).

The bridge owner, National Railroad Passenger Corporation (AMTRAK) requested a temporary deviation from the drawbridge operation regulations to test for a period of 90 days, an alternate drawbridge operation schedule. This temporary 90-day deviation will expand the two time periods in the morning and afternoon Monday through Friday when the bridge may remain closed to vessel traffic. Rail traffic during the morning and afternoon commuter periods have increased. Bridge openings during the two commuter time periods have caused delays to rail traffic prompting the bridge owner to request the expansion of the bridge closure periods week days, Monday through Friday.

The existing drawbridge operation regulations allow the bridge to remain closed to vessel traffic, Monday through Friday, from 7:20 a.m. to 9:20 a.m. and from 4:30 p.m. to 6:50 p.m., daily.

Under this 90-day temporary deviation, effective from March 1, 2004 through May 29, 2004, the AMTRAK Portal Bridge need not open for vessel traffic, Monday through Friday, from 6 a.m. to 10 a.m. and from 4 p.m. to 8 p.m., daily.

Additional bridge openings will be provided for commercial vessels from 6 a.m. to 7:20 a.m., from 9:20 a.m. to 10 a.m., from 4 p.m. to 4:30 p.m. and from 6:50 p.m. to 8 p.m., if at least a one-hour advance notice is given by calling the number posted at the bridge.

This deviation from the operating regulations is authorized under 33 CFR § 117.43.

On December 31, 2002, we published a final rule entitled “Security Zones, San Francisco Bay, CA” in the Federal Register (67 FR 79854) creating section 165.1183 of title 33 of the Code of Federal Regulations (CFR), setting forth security zones for cruise ships and tank vessels. On November 12, 2003, we published a notice of proposed rulemaking (NPRM) entitled “Security Zones; San Francisco Bay, California” in the Federal Register (68 FR 64038), proposing to amend section 165.1183 to include HIV's as protected vessels, along with cruise ships and tank vessels. We received one letter commenting on the proposed rule. No public hearing was requested, and none was held.

On February 27, 2003, we published a rule in the Federal Register (68 FR 9003) creating temporary section 165.T11-077 of title 33 of the Code of Federal Regulations (CFR). Under temporary section 165.T11-077, which expired at 11:59 p.m. P.s.t. on May 31, 2003, the Coast Guard established 100-yard security zones around all High Interest Vessels (HIV's) that entered, were moored in, anchored in or departed from the San Francisco Bay and Delta ports.

On May 30, 2003, a change in effective period temporary rule was published in the Federal Register (68 FR 32368) under the same previous temporary section 165.T11-077, which expired at 11:59 p.m. P.d.t. on September 30, 2003.

On September 26, 2003, another change in effective period temporary rule was published in the Federal Register (68 FR 55445) under the same previous temporary section 165.T11-077, which is set to expire at 11:59 p.m. P.s.t. on March 31, 2004. The Captain of the Port has determined that the need for continued security regulations exits. Accordingly, this final rule creates a permanent regulation for security zones in the same locations covered by the temporary final rule published on February 27, 2003 (68 FR 9003), which was later extended by two other rules published in the Federal Register on May 30, 2003 (68 FR 32368), and September 26, 2003 (68 FR 55445).

These security zones are activated when any HIV passes shoreward of the line drawn between San Francisco Main Ship Channel buoys 7 and 8 (LLNR 4190 & 4195, positions 37 °46.9′ N, 122 °35.4′ W & 37 °46.5′ N, 122 °35.2′ W, respectively) and remains in effect while the vessel is underway, anchored or moored within in the San Francisco Bay and Delta ports. When activated, this security zone will encompass all waters, extending from the surface to the sea floor, within 100 yards ahead, astern and extending 100 yards along either side of any HIV in the San Francisco Bay and Delta ports. This security zone is automatically deactivated when the HIV passes seaward of the line drawn between San Francisco Main Ship Channel buoys 7 and 8 (LLNR 4190 & 4195, positions 37 °46.9′ N, 122 °35.4′ W & 37 °46.5′ N, 122 °35.2′ W, respectively) on its departure from port. Vessels and people may be allowed to enter an established security zone on a case-by-case basis with authorization from the Captain of the Port.

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

The Captain of the Port will enforce these zones and may enlist the aid and cooperation of any Federal, State, county, municipal, and private agency to assist in the enforcement of the regulation.

Since the September 11, 2001, terrorist attacks on the World Trade Center in New York, the Pentagon in Arlington, Virginia, and Flight 93, the Federal Bureau of Investigation (FBI) has issued several warnings concerning the potential for additional terrorist attacks within the United States. In addition, the ongoing hostilities in Afghanistan and the conflict in Iraq have made it prudent for U.S. ports to be on a higher state of alert because Al-Qaeda and other organizations have declared an ongoing intention to conduct armed attacks on U.S. interests worldwide.

The threat of maritime attacks is real as evidenced by the attack on the USS Cole and the subsequent attack in October 2002 against a tank vessel off the coast of Yemen. These threats manifest a continuing threat to U.S. assets as described in the President's finding in Executive Order 13273 of August 21, 2002 (67 FR 56215, September 3, 2002), that the security of the U.S. is endangered by the September 11, 2001, attacks and that such aggression continues to endanger the international relations of the United States. See also Continuation of the National Emergency with Respect to Certain Terrorist Attacks (67 FR 58317, September 13, 2002), and Continuation of the National Emergency with Respect to Persons Who Commit, Threaten To Commit, or Support Terrorism (67 FR 59447, September 20, 2002). The U.S. Maritime Administration (MARAD) in Advisory 02-07 advised U.S. shipping interests to maintain a heightened status of alert against possible terrorist attacks. MARAD more recently issued Advisory 03-05 informing operators of maritime interests of increased threat possibilities to vessels and facilities and a higher risk of terrorist attack to the transportation community in the United States. The ongoing foreign hostilities have made it prudent for U.S. ports and waterways to be on a higher state of alert because the Al-Qaeda organization and other similar organizations have declared and ongoing intention to conduct armed attacks on U.S. interests worldwide.

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

In this particular rulemaking, to address the aforementioned security concerns, and to take steps to prevent the catastrophic impact that a terrorist attack against an HIV would have on the public interest, the Coast Guard is establishing permanent security zones around and under HIV's entering, departing, moored or anchored within the San Francisco Bay and Delta ports. These security zones help the Coast Guard to prevent vessels or persons from engaging in terrorist actions against HIV's. Due to these heightened security concerns, and the catastrophic impact a terrorist attack on an HIV would have on the crew and passengers on board and surrounding area and communities, security zones are prudent for these types of vessels.

No public hearing was requested, and none was held. We received one letter on the proposed rule, which recommended that we establish a standardized means for vessels to transmit the existence of a security zone using their Automatic Identification System (AIS). Although AIS may be used in the future to include security zone information, the system and policies on how AIS will be used are still being developed. In addition, a Coast Guard or other law enforcement vessel will normally be present to escort HIVs. In addition to informing nearby vessels of the existence of the security zone, the escort boat provides a visual indication that a security zone is being enforced. Therefore, we did not change the final rule based on this comment and will implement the provisions of the proposed rule as written. The comment received regarding incorporation of security zone information in AIS data will be forwarded to the appropriate office at Coast Guard Headquarters for consideration in AIS technology development and implementation.

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

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. Although this regulation restricts access to the zones, the effect of this regulation is not significant because: (i) The zones encompass only a small portion of the waterway; (ii) vessels are able to pass safely around the zones; (iii) vessels will be allowed to enter these zones on a case-by-case basis with permission of the Captain of the Port, or his designated representative; and (iv) vessels are able to safely transit around the zones while a vessel is moored or at anchor in the San Francisco Bay and Delta ports.

The size of these zones is the minimum necessary to provide adequate protection for HIV's, their crews and passengers, other vessels operating in the vicinity of HIV's, their crews and passengers, adjoining areas, and the public. The entities most likely to be affected are commercial vessels transiting the main ship channel en route the San Francisco Bay and Delta ports and pleasure craft engaged in recreational activities and sightseeing. The security zones will prohibit any commercial vessels from meeting or overtaking an HIV in the main ship channels, effectively prohibiting use of the channels. However, the moving security zones are only effective during HIV transits, which last approximately 30 minutes.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. The security zones will not have a significant economic impact on a substantial number of small entities for several reasons: Vessel traffic can pass safely around the area and vessels engaged in recreational activities, sightseeing and commercial fishing have ample space outside of the security zones to engage in these activities. When a HIV is at anchor, vessel traffic has ample room to maneuver around the security zones. Small entities and the maritime public will be advised of these security zones via public notice to mariners.

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

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

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

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

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

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

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

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

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

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

We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation because we are establishing a security zone. An “Environmental Analysis Check List” and a “Categorical Exclusion Determination” (CED) are available in the docket where indicated under ADDRESSES.

Sections 407 and 408 of title 17, United States Code, require that owners of any motion picture that has been published must deposit a copy of the work with the Copyright Office for the use of the Library of Congress. The copy submitted must be the “best edition” of the work, which is “the edition, published in the United States, at any time before the date of deposit, that the Library of Congress determines to be most suitable for its purposes.” 17 U.S.C. 101 (definition of best edition). Based on that statutory requirement, the regulations require that “when two or more editions of the same version of a work have been published, the one of the highest quality is generally considered to be the best edition.” 37 CFR 202, App. B. The criteria for what constitutes the best edition, for all kinds of copyrighted works, are contained in Appendix B of 37 CFR 202, which is entitled ‘ “Best Edition’ of Published Copyrighted Works for the Collections of the Library of Congress.” Subpart III of Appendix B establishes the requirements for motion pictures, ranking movie formats for commercial and home viewing in descending order of preference relative to their quality, beginning with the format that is most suitable for the Library's purposes. This regulation amends subpart III to make changes that take into account recent technological developments and to make editorial changes that clarify the requirements.

The only change to the requirements for film formats is to add 70 millimeter positive print as the most desirable film format (apart from preprint material, by special arrangement). The addition of this film format to the regulation clarifies the Library's desire to obtain published motion pictures in a superior format. This format is only required where the original production negative size is greater than 35 millimeters.

One-Inch Open Reel Tape. One-inch open reel tape has been deleted from subpart III of the best edition list because it is a defunct format.

BetacamSP, Digibeta and Betacam. Betacam SP will continue to be on the list and digibeta, also known as digital beta, has been added. These are videocassettes in analog and digital formats, respectively, that are now widely used in the television industry. Both are better quality than the format that is commonly known as “betacam,” which has been deleted from the list.

D-2. D-2 is an obsolete version of the D Series. The current version is D-9. However, the format for the D Series has been entirely eliminated from the list because each version rapidly becomes obsolete.

DVD and Videodisc. DVDs, which are 4 3/4 inch disks in digital format for home viewing of films, are replacing videodiscs on the list, which are 12 inch disks in analog format.

Three-Quarter Inch Cassette. Three-quarter inch cassette, also commonly known as “U-matic,” has been removed from the list because it is a defunct format.

One-Half Inch VHS Cassette and VHS Cassette. Changing “one-half inch VHS cassette” to “VHS cassette” is an editorial change. “VHS cassette” is now the commonly used term for this home viewing format.

The Copyright Office is publishing this amendment as a final rule because owners of published motion pictures have already begun complying with these changes to the best edition requirements. The Office believes these changes are noncontroversial and will elicit no significant adverse comment. However, the Office is providing the public an opportunity to submit written comments by March 29, 2004. The rule will take effect April 26, 2004, unless the Copyright Office has received adverse substantive comments and publishes a notice withdrawing the rule before that date.

Although the Copyright Office, as a department of the Library of Congress and part of the Legislative Branch, is not an “agency” subject to the Regulatory Flexibility Act, 5 U.S.C. 601-612, the Register of Copyrights has considered the effect of the proposed amendment on small businesses. The Register has determined that the amendments would not have a significant economic impact on a substantial number of small business entities that would require a provision of special relief for them. The proposed amendments are designed to minimize any significant economic impact on small business entities.

On May 8, 2003, the parties to this rate adjustment proceeding presented the Librarian of Congress with a settlement proposing the rates and terms for the use of sound recordings in eligible nonsubscription transmissions and new subscription services pursuant to the section 112 and section 114 statutory licenses. Section 251.63(b) of title 37 of the Code of Federal Regulations allows the Librarian to adopt the parties' proposed rates and terms without convening a Copyright Arbitration Royalty Panel (“CARP”), provided the proposed rates and terms are published in the Federal Register and no interested party with an intent to participate in the proceeding files an objection to the proposed rates and/or terms. Accordingly, on May 20, 2003, the Copyright Office published the proposed regulations for notice and comment. 69 FR 27506 (May 20, 2003). However, the published document contained an error in § 262.2(a), which defines the term “Aggregate Tuning Hours.” The error appeared in the example illustrating the calculation of Aggregate Tuning Hours and apparently occurred as the Federal Register conformed the document to its style requirements. At that time, the Federal Register inadvertently changed the phrase “If three minutes” to “If 30 minutes.” This error went undetected; as a result, it also appeared in the final rule document published on February 6, 2004. This document corrects that error.

On November 19, 2003 (68 FR 65234), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Pennsylvania pertaining to revisions to the ten-year plan to maintain the 1-hour ozone national NAAQS in the Reading area Berks County. In that NPR, EPA proposed approval of revisions to the attainment year inventories and the 2004 and 2007 motor vehicle emission budgets (MVEBs) using MOBILE6. The MOBILE6 model is an updated version of the MOBILE model used for calculating mobile emissions of ozone precursors. In that same NPR published on November 19, 2003, EPA also proposed approval of revisions to the contingency measures portion of the maintenance plan. EPA proposed approval of these SIP revisions under a procedure called parallel processing, whereby EPA proposes a rulemaking action concurrently with a state's procedures for amending its SIP. The State's proposed SIP revisions were submitted to EPA on October 14, 2003 by the Pennsylvania Department of the Environmental Protection (PADEP). On November 19, 2003, EPA proposed approval of Pennsylvania's October 14, 2003 submittal. No comments were submitted during the public comment period on EPA's November 19, 2004 proposal. The PADEP formally submitted the final SIP revision on December 9, 2003. That final submittal had no substantive changes from the proposed version submitted to EPA on October 14, 2003. A detailed description of both Pennsylvania's submittal and EPA's rationale for its proposed approval were provided in the November 19, 2003 NPR and, therefore, are only briefly summarized here.

For the Reading area maintenance plan, the MVEBs are the projected on-road mobile source components of the 2004 and 2007 maintenance inventories. These budgets were developed using the latest planning assumptions, including 2002 vehicle registration data, vehicle miles traveled, speeds, fleet mix, and SIP control measures. Because PADEP's December 9, 2003 submittal satisfies the conditions outlined in EPA's MOBILE6 Policy guidance, and demonstrates that the new levels of motor vehicle emissions calculated using MOBILE6 continue to support maintenance of the 1-hour ozone NAAQS, EPA is approving these budgets. The revised mobile inventories and emissions budgets being approved for the Reading area are shown below in Tables 1 and 2 respectively.

In the original maintenance plan for the Reading area, the Commonwealth's motor vehicle inspection and maintenance (I/M) program was identified as a contingency measure. The December 9, 2003 SIP revision moves the I&M program from the contingency measures portion of the plan and makes it part of the maintenance strategy. Improved rule effectiveness will remain as a contingency measure in the maintenance plan.

EPA is approving Pennsylvania's December 9, 2003 SIP revisions. These revisions amend the Reading area's maintenance plan for the 1-hour NAAQS to update the attainment year motor vehicle emissions inventory and the 2004 and 2007 MVEBs using MOBILE6. The revisions also amend the contingency measures portion of the maintenance plan.

In accordance with the parallel processing procedures, EPA has evaluated Pennsylvania's final SIP revisions submitted on December 9, 2003 and finds that no substantial changes were made from the proposed SIP revisions submitted on October 14, 2003. The revised plan for the Reading area continues to demonstrate maintenance of the 1-hour NAAQS for ozone.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 26, 2004. 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 to approve SIP revisions to the 1-hour ozone maintenance plan for the Reading area which amend its contingency measures and revise the attainment year motor vehicle emissions inventory and 2004 and 2007 MVEBs using MOBILE6 may not be challenged later in proceedings to enforce their requirements. ( See section 307(b)(2)).

This action does not impose any regulation on the public, and in fact there are no entities affected. This action merely approves, codifies, and incorporates by reference into the Code of Federal Regulations the revisions to the Texas UIC program previously adopted by the State. The rules that are the subject of this codification are already in effect in Texas under Texas law. The IBR allows EPA to enforce the State authorized UIC program, if necessary, and to intervene effectively in case of an imminent and substantial endangerment to public health and/or underground sources of drinking water (USDWs) in the State.

Section 1421 of Safe Drinking Water Act (SDWA) requires the Administrator to promulgate minimum requirements for effective State programs to prevent underground injection activities which endanger underground sources of drinking water (USDWs). Section 1422 of SDWA allows States to apply to the EPA Administrator for authorization of primary enforcement and permitting authority (primacy) over injection wells within the State. Section 1422(b)(1)(A) provides that States shall submit to the Administrator an application that: (1) Contains a showing satisfactory to the Administrator that the State has adopted and will implement an underground injection control program which meets the requirements of regulations in effect under section 1421 of SDWA, and (2) will keep such records and make such reports with respect to its activities under its underground injection control program as the Administrator may require by regulation.

To be approved under section 1422, a State must, among other things, show that it will implement an underground injection control program that meets the requirements of the Federal regulations in effect under SDWA, section 1421. Specifically, all State programs approved under section 1422 must meet the minimum requirements in title 40 parts 144 to 146 and 148. States need not implement provisions identical to the provisions listed in these parts, but they must implement provisions that are at least as stringent. Section 1422(b)(1)(B)(2) requires, after reasonable opportunity for public comment, the Administrator to, by rule, approve, disapprove, or approve in part, the State UIC program.

EPA's approval of primacy for the State of Texas for underground injection into Class I, III, IV, and V wells was published on January 6, 1982 (47 FR 618), and became effective February 6, 1982. Elements of the State's primacy application, submitted through the Texas Department of Water Resources (TDWR), a predecessor to the Texas Commission on Environmental Quality  1 (TCEQ), were approved and published in title 40 of the Code of Federal Regulations, at 40 CFR 147.2200. Since that time, authority has been passed through to succeeding agencies. The TDWR became the Texas Water Commission (TWC), which was reorganized in 1993 into the Texas Natural Resource Conservation Commission (TNRCC) and recently renamed the Texas Commission on Environmental Quality (TCEQ). TCEQ is the agency currently charged with administering the UIC program for Class I, III, IV, and most Class V wells in Texas.

In addition to TDWR receiving approval to administer the UIC program for Class I, III, IV and V injection wells, RRC received approval to administer the UIC program for energy related injection activities in the State, effective May 23, 1982. These wells include Class II injection wells related to oil and gas exploration and production, and Class V geothermal return and in situ coal combustion wells. In 1985, the 69th Texas Legislature enacted legislation that transferred jurisdiction over Class III brine mining wells from the Texas Water Commission, now the Texas Commission on Environmental Quality, to the RRC.

Section 1422 of SDWA and regulations at 40 CFR 145.32 allow for revision of approved State UIC programs when State statutory or regulatory authority is modified or supplemented. In accordance with those requirements, and in conjunction with a substantial revision submitted by the TNRCC (now TCEQ) and approved earlier, RRC submitted revisions to EPA for approval and codification of that portion of RRC's UIC program governing Class III brine mining wells. The RRC program related to Class V geothermal return and in situ combustion of coal has not been revised and remains in effect. Other Class III injection wells remain regulated by the TCEQ.

EPA proposed the program revisions to RRC's Class III brine mining program in the Federal Register on November 8, 2001 (66 FR 56503-56507) and in five major newspapers within the State. That proposal indicated EPA's intention to approve the revisions to the RRC program for Class III brine mining wells, asked for comments, and offered the opportunity to request a public meeting. That notice included a description of key issues raised and actions taken to achieve issue resolution. The key issues identified and discussed in the proposal related to the following components in the RRC UIC program:

• Protection Standard;

• Fluid Migration;

• Plugging and Abandonment;

• Permit Application Requirements;

• Monitoring, Compliance Tracking and Enforcement Activities;

• Public Participation;

• References to State Law.

The proposal published in the Federal Register on November 8, 2001 (66 FR 56503-56507) included changes to 40 CFR 147.2200 to implement RRC programmatic changes. The changes to Part 147 promulgated in today's rule differ from the proposed changes only in formatting and in the addition of a specific list of the types of wells, other than Class II, that are included in the RRC program.

Today's action approves, codifies, and incorporates by reference those revisions submitted by the RRC to the Class III portion of the State's UIC program for brine mining wells originally approved under section 1422 of SDWA in 1982.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether the regulatory action is “significant” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:

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

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

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

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

It has been determined that this rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. It does not impose any information collection, reporting, or record-keeping requirements. It merely approves, codifies, and incorporates by reference State revisons to the EPA approved UIC program.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9, and 48 CFR chapter 15.

The Regulatory Flexibility Act (RFA) generally requires an Agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedures Act or any other statute 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 organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's rule on small entities, we defined small entities as (1) a small business based on Small Business Administration (SBA) size standards; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This rule merely approves, codifies, and incorporates by reference into 40 CFR part 147 the revisions to the Texas program regulations already adopted and implemented by the State of Texas ensuring the protection of underground sources of drinking water. Codification of these revisions does not result in additional regulatory burden to or directly impact small businesses in Texas.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written Statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted.

Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of the UMRA a small government Agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. Today's rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or Tribal governments or the private sector because the rule imposes no enforceable duty on any State, local or Tribal governments or the private sector. This final rule only approves the State's UIC regulations as revised and in effect in the State of Texas. Thus today's rule is not subject to the requirements of sections 202 and 205 of UMRA. For the same reason, EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Thus, today's rule is not subject to the requirements of section 203 of UMRA.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), 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.”

This final rule does not have federalism implications. It will not have substantial direct effects on the State, on the relationship between the national government and the State, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This rule merely approves and codifies regulations already adopted and implemented by the State of Texas ensuring the protection of underground sources of drinking water. This codification revises the existing federally approved Texas UIC program, described at 40 CFR 147.2200, to reflect current statutory, regulatory, and other key programmatic elements of the program. Thus, Executive Order 13132 does not apply to this rule. Although Executive Order 13132 does not apply to this rule, extensive consultation between EPA and the State of Texas went into revising the UIC regulations. The proposal published in the Federal Register on November 8, 2001 (66 FR 56503-56507) provides a detailed description of the consultations that took place in preparation of the Texas UIC regulations which are the subject of this codification. In addition, in the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicited comment on the proposed rule from State and local officials.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop “an accountable process to ensure meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

This final rule does not have Tribal implications. It will not have substantial direct effects on Tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. The UIC program for Indian lands is separate from the State of Texas UIC program. The UIC program for Indian lands in Texas is administered by EPA and can be found at 40 CFR 147.2205 of the Code of Federal Regulations. Thus, Executive Order 13175 does not apply to this rule. Nevertheless, in the spirit of Executive Order 13175, and consistent with EPA policy to promote communications between EPA and Tribal governments, EPA specifically solicited comment on the proposed rule from Tribal officials in its notice published in the Federal Register on November 8, 2001 (66 FR 56496-56503), and in five major newspapers within the State.

Executive Order 13045: “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 E.O. 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 final rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866. Further, it does not concern an environmental health or safety risk that EPA has reason to believe may have a disproportionate risk to children.

This rule is not subject to Executive Order 13211, “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Pub. L. 104-113, section 12(d), (15 U.S.C. 272 note), directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , materials specifications, test methods, sampling procedures, business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide to Congress, through the Office of Management and Budget (OMB), explanations when EPA decides not to use available and applicable voluntary consensus standards.

This rulemaking does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

Executive Order 12898 establishes a Federal policy for incorporating environmental justice into Federal agency missions by directing agencies to identify and address disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority and low-income populations. This rule does not affect minority or low income populations.

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). This rule will be effective on March 29, 2004.

The information in this section is organized as follows:

A delisting petition is a request from a generator to exclude waste from the list of hazardous wastes under RCRA regulations. In a delisting petition, the petitioner must show that waste generated at a particular facility does not meet any of the criteria for which EPA listed the waste as set forth in Title 40 Code of Federal Regulations (40 CFR 261.11) and the background document for the waste. In addition, a petitioner must demonstrate that the waste does not exhibit any of the hazardous waste characteristics (that is, ignitability, reactivity, corrosivity, and toxicity) and must present sufficient information for us to decide whether factors other than those for which the waste was listed warrant retaining it as a hazardous waste. ( See 40 CFR 260.22, 42 U.S.C. 6921(f) and the background documents for a listed waste.)

Generators remain obligated under RCRA to confirm that their waste remains nonhazardous based on the hazardous waste characteristics even if EPA has “delisted” the wastes and to ensure that future generated wastes meet the conditions set.

Under 40 CFR 260.20, 260.22, and 42 U.S.C. 6921(f), facilities may petition the EPA to remove their wastes from hazardous waste control by excluding them from the lists of hazardous wastes contained in 40 CFR 261.31 and 261.32. Specifically, 40 CFR 260.20 allows any person to petition the Administrator to modify or revoke any provision of parts 260 through 266, 268, and 273 of 40 CFR. 40 CFR 260.22 provides a generator the opportunity to petition the Administrator to exclude a waste on a “generator specific” basis from the hazardous waste lists.

Automobile manufacturers are adding aluminum to automobiles, which may result in increased fuel economy. However, when aluminum is conversion coated in the automobile assembly process, the resulting wastewater treatment sludge must be managed as EPA hazardous waste F019. A number of automotive assembly plants use a similar manufacturing process which generates a similar F019 waste likely to be nonhazardous. This similarity of manufacturing processes and the resultant wastes provides an opportunity for the automobile industry to be more efficient in submitting delisting petitions and EPA in evaluating them. Efficiency may be gained and time saved by using a standardized approach for gathering, submitting and evaluating data. Therefore, EPA, in conjunction with MDEQ, developed a pilot project to expedite the delisting process. This approach to making delisting determinations for this group of facilities is efficient while still being consistent with current laws and regulations and protective of human health and the environment.

By removing regulatory controls under RCRA, EPA is facilitating the use of aluminum in cars. EPA believes that incorporating aluminum in cars will be advantageous to the environment since lighter cars are capable of achieving better fuel economy.

The expedited process to delist F019 is an approach developed through a Memorandum of Understanding (MOU) with MDEQ for gathering and evaluating data in support of multiple petitions from automobile assembly plants. The expedited delisting process is applicable to wastes generated by automobile and light truck assembly plants in the State of Michigan which use a similar manufacturing process and generate similar F019 waste.

Based on available historical data and other information, the expedited process identified 70 constituents which might be of concern in the waste and provides that the F019 sludge generated by automobile assembly plants may be delisted if the levels of the 70 constituents do not exceed the allowable levels established for each constituent in this rulemaking. The maximum annual quantity of waste generated by any single facility which may be covered by an expedited delisting is 3,000 cubic yards, but delisting levels were also proposed for smaller quantities of 1,000 and 2,000 cubic yards.

DCC-JNAP submitted certification that its process was the same as the process described in the MOU with MDEQ. See 67 FR 10341, March 7, 2002. The facility also submitted an assertion that its waste does not meet the criteria for which F019 waste was listed and there are no other factors which might cause the waste to be hazardous.

In the proposed rulemaking, EPA set forth different demonstration and verification sampling depending upon whether or not the facility was already generating F019 (67 FR 10341, March 7, 2002). At the time of the proposed delisting, DCC-JNAP was not yet generating F019 because it was not using aluminum in car production. However, by the time it conducted demonstration sampling, DCC-JNAP had begun generating F019, although production of cars with aluminum was less than 50 units per day. Therefore, the demonstration sampling submitted by DCC-JNAP and the verification sampling required in today's rule parallels demonstration and verification sampling for facilities already generating F019. At the time of the demonstration sampling, DCC-JNAP was already incorporating aluminum parts and thus generating F019, but was producing less than 50 cars per day with aluminum. Although not required in today's rule, EPA has requested DCC-JNAP to notify the Agency when production of aluminum containing cars reaches 500 units per day.

To support its exclusion demonstration, DCC-JNAP collected six samples representing waste generated over six weeks. Each sample was analyzed for: (1) Total analyses of the 70 constituents of concern; (2) Toxicity Characteristic Leaching Procedure (TCLP), SW-846 Method 1311, analyses of the 70 constituents of concern; (3) oil and grease; (4) leachable metals using the Extraction Procedure for Oily Wastes (OWEP), SW-846 Method 1330A, in lieu of Method 1311 if a sample contained more than 1% oil and grease; and (5) total constituent analyses for sulfide and cyanide; In addition, the pH of each sample was measured and a determination was made that the waste was not ignitable, corrosive or reactive ( see 40 CFR 261.21-261.23). All sampling and analysis were done in accordance with the sampling and analysis plan which is an appendix to the MOU and is available in the docket for this rule. The data submitted included the appropriate QA/QC information as required in the sampling and analysis plan and was validated by a third party.

A few minor changes in the sampling approach were made prior to the sampling. Instead of sampling from six different roll-off boxes, which would have required multiple sampling events or long-term storage of full roll-off boxes, DCC-JNAP collected representative amounts of sludge each week from February 17, 2003 through March 30, 2003. The sludge for each week was placed in a separate drum. On March 31, 2003, composite and grab samples were collected from each drum.

The maximum values of constituents detected in any sample of the waste water treatment plant sludge and in a TCLP extract of that sludge are summarized in the following table.

EPA compared the analytical results submitted by DCC-JNAP to the maximum allowable levels calculated by the DRAS and set forth in the proposed rule (67 FR 10341, March 7, 2002). The maximum allowable levels for constituents detected in the waste or the waste leachate are summarized in the table above, along with the observed levels. All constituents compared favorably to the allowable levels.

The table also includes the maximum allowable levels in groundwater at a potential receptor well, as evaluated by the Delisting Risk Assessment Software (DRAS). These levels are the more conservative of either the Safe Drinking Water Act Maximum Contaminant Level (MCL) or the health-based value calculated by DRAS based on the target cancer risk level of 10 − 6 . For arsenic, the target cancer risk was set at 10 − 4 in consideration of the MCL and the potential for natural occurrence. The maximum allowable groundwater concentration and delisting level for arsenic correspond to a drinking water concentration less than one half the current MCL of 10 μg/L.

EPA also used the DRAS program to estimate the aggregate cancer risk and hazard index for constituents detected in the waste. The aggregate cancer risk is the cumulative total of all individual constituent cancer risks. The hazard index is a similar cumulative total of non-cancer effects. The target aggregate cancer risk is 1×10 − 5 and the target hazard index is one. The waste water treatment plant sludge at DCC-JNAP met both of these criteria.

The EPA received public comments on the proposed notice published on March 7, 2002 from Alliance of Automobile Manufacturers, Honda of America Mfg., Inc., Alcoa Inc., and The Aluminum Association. All commenters were supportive of the proposal, suggesting expanding the project and/or revising the listing.

(1) Comment: EPA should revise the F019 listing to specify that wastewater treatment sludge from zinc phosphating operations is not within the scope of the listing. Data gathered as a result of the Expedited Delisting Project together with the available historical data, should provide enough data to fully characterize this waste and to justify a revision of the listing.

EPA Response: The Agency is now considering revising the F019 listing. EPA is examining the data collected as a result of this project, as well as past data, as a basis for a possible revision to the F019 listing.

(2) Comment: EPA should issue an interpretive rule clarifying that zinc phosphating operations are outside the scope of the F019 listing.

EPA Response: An interpretive rule presents administrative and technical difficulties. A revision to the listing will require a rulemaking process. See response to comment (1) above.

(3) Comment: Automobile assembly facilities outside of Michigan would like to take advantage of the precedent set by this expedited delisting project to delist F019 generated by similar operations in other states and regions.

EPA Response: The Agency believes that the expedited delisting procedures and requirements set forth in this proposal are appropriate for similar automotive assembly facilities outside the State of Michigan, subject to the discretion of the regulatory agency (State or region).

(4) Comment: Alternatives to landfilling like recycling should be allowed within the petition process.

EPA Response: The Agency does not delist wastes which are recycled because the model used to estimate risk is based only on disposal of waste in a Subtitle D landfill. The risk which might result from any other scenario is not evaluated by the delisting program. However, the Agency encourages safe recycling, and variances and exclusions from the definition of solid and hazardous wastes are available for wastes which are recycled.

(5) Comment: Analytical methods should be specified in the pre-approved common sampling plan instead of requiring each participant to submit a site-specific list of methods.

EPA Response: Allowing the petitioner to choose an analytical method which meets the data quality objectives specific to the delisting petition provides flexibility. Data quality objectives will vary depending on the allowable levels which are a function of the volume of petitioned waste. The Agency believes that the flexibility of performance-based methods results in better data.

(6) Comment: Detection limits should not be required prior to sampling since they cannot be adequately predicted without a way to estimate matrix effects.

EPA Response: Although matrix effects cannot be assessed in advance of laboratory analysis, a laboratory should be able to provide estimated detection levels and reporting levels which are lower than, or at least equal to, the allowable delisting level for each constituent.

(7) Comment: Since the process generating the sludge is extremely stable, verification sampling should be conducted on an annual, instead of quarterly, basis. The requirement that any process change be promptly reported and the exclusion suspended until EPA gives written approval that the delisting can continue is an adequate safeguard justifying the decrease in sample event frequency.

EPA Response: Verification data submitted in conjunction with past delistings of this waste have shown significant variation on a quarterly basis over longer periods of time. Annual sampling would not detect such variations. Once enough verification data are collected to support a statistical analysis, a change in the frequency of verification sampling and/or sampling parameters may be considered.

(8) Comment: The final Federal Register should make it clear that assembly plants that manufacture light trucks are also eligible for the project.

EPA Response: Today's notice specifically defines eligible facilities as inclusive of manufacturers of light trucks.

(9) Comment: The table of maximum allowable levels in the March 7, 2002 proposed rule contains errors in the columns for vinyl chloride.

EPA Response: The error was caused by a missing space or tab in the table. Although vinyl chloride was not detected in the waste at DCC-JNAP, the maximum allowable concentrations proposed for 1,000 cubic yards of waste should have been a total of 178 milligrams per kilogram (mg/kg) and 0.00384 milligrams per liter (mg/L) in the TCLP. For 2,000 cubic yards of waste, 115 mg/kg total and 0.00234 mg/L TCLP were proposed. For 3,000 cubic yards of waste, 89.4 mg/kg total and 0.00175 mg/L TCLP were proposed.

Today the EPA is finalizing exclusions to conditionally delist 2,000 cubic yards annually of wastewater treatment plant sludge from conversion coating on aluminum generated at the DCC-JNAP.

On March 7, 2002, EPA proposed to exclude or delist these wastewater treatment sludges from the list of hazardous wastes in 40 CFR 261.31 and accepted public comment on the proposed rule (67 FR 10341). EPA considered all comments received, and we believe that these wastes should be excluded from hazardous waste control.

DCC-JNAP must dispose of the waste in a lined Subtitle D landfill which is permitted, licensed, or registered by a state to manage industrial waste. DCC-JNAP must verify on a quarterly basis that the concentrations of the constituents of concern do not exceed the allowable levels set forth in this exclusion. In addition, the sum of the hazard quotients for nickel and either thallium or cadmium may not exceed one. 1 All facilities participating in the expedited delisting project had significant amounts of nickel in the leachate, and nickel combines with thallium and with cadmium targeting the liver and kidneys, respectively.

DCC-JNAP must obtain and analyze a representative sample of the waste according to the current waste analysis plan modified to include the improved methodologies discussed in section III. A.

The list of constituents for verification is a subset of those initially tested for and is based on the occurrence of constituents at the majority of facilities participating in the expedited process to delist F019 and the concentrations relative to the allowable levels.

This exclusion applies only to a maximum annual volume of 2,000 cubic yards and is effective only if all conditions contained in this rule are satisfied.

This rule is effective [insert date of publication]. The Hazardous and Solid Waste Amendments of 1984 amended section 3010 of RCRA to allow rules to become effective in less than six months when the regulated community does not need the six-month period to come into compliance. This rule reduces rather than increases the existing requirements and, therefore, is effective immediately upon publication under the Administrative Procedure Act, pursuant to 5 U.S.C. 553(d).

Today's exclusion is being issued under the federal RCRA delisting program. Therefore, only states subject to federal RCRA delisting provisions would be affected. This exclusion is not effective in states which have received authorization to make their own delisting decisions. Also, the exclusion may not be effective in states having a dual system that includes federal RCRA requirements and their own requirements. EPA allows states to impose their own regulatory requirements that are more stringent than EPA's, under section 3009 of RCRA. These more stringent requirements may include a provision that prohibits a federally issued exclusion from taking effect in the state. Because a dual system (that is, both federal (RCRA) and state (non-RCRA) programs) may regulate a petitioner's waste, we urge petitioners to contact the state regulatory authority to establish the status of their wastes under the state law.

EPA has also authorized some states to administer a delisting program in place of the federal program, that is, to make state delisting decisions. Therefore, this exclusion does not apply in those authorized states. If a participating facility transports the petitioned waste to or manages the waste in any state with delisting authorization, it must obtain a delisting from that state before it can manage the waste as nonhazardous in the state.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this rule is not of general applicability and therefore is not a regulatory action subject to review by the Office of Management and Budget. Because this rule is of particular applicability relating to a particular facility, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), or to sections 202, 204, and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because this rule will affect only a particular facility, it will not significantly or uniquely affect small governments, as specified in section 203 of UMRA, or communities of tribal governments, as specified in Executive Order 13175 (65 FR 67249, November 6, 2000). For the same reason, this 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 (64 FR 43255, August 10, 1999). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

This rule does not involve technical standards; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. 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. 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. ).

This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.

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. Section 804 exempts from section 801 the following types of rules (1) rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability.

This is a synopsis of the Commission's Report and Order, MB Docket No. 03-221, adopted February 12, 2004, and released February 19, 2004. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC, 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

This is a synopsis of the Commission's Report and Order, MB Docket No. 03-234, adopted February 12, 2004, and released February 19, 2004. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

On July 28, 2003, FRA published a final rule that prescribed safety standards for railroad on-track roadway maintenance machines and hi-rail vehicles. See 68 FR 44388. The final rule originated from a 1990 petition for rulemaking by the Brotherhood of Maintenance of Way Employees (BMWE) and was the product of a rulemaking effort conducted under the auspices of FRA's Railroad Safety Advisory Committee (RSAC).

As background, RSAC provides a forum for developing consensus recommendations on rulemaking and other safety program issues, and includes representatives from all of FRA's major customer groups, including railroads, labor organizations, suppliers and manufacturers, and other interested parties. When appropriate, FRA assigns a task to RSAC, and after consideration and debate, RSAC may accept or reject the task. If accepted, RSAC establishes a working group that possesses the appropriate expertise and representation of interests to develop recommendations to FRA for action on the task. These recommendations are developed by consensus. The working group may establish one or more task forces or other subgroups to develop facts and options on a particular aspect of a given task. The task force or other subgroup reports to the working group. If a working group comes to unanimous consensus on recommendations for action, the package is presented to the RSAC for a vote. If the proposal is accepted by a simple majority of RSAC, the proposal is formally recommended to FRA. FRA then determines what action to take on the recommendation.

Because FRA staff is actively involved at the working group and subgroup levels in discussing issues and options and drafting proposed rule language, and because the RSAC recommendation constitutes the consensus of some of the industry's leading experts on a given subject, FRA is often favorably inclined toward the RSAC recommendation. However, FRA is in no way bound to follow the recommendation, and the agency exercises its independent judgment on whether the recommended rule achieves the agency's regulatory goal, is soundly supported, and is in accordance with policy and legal requirements. Often, FRA varies in some respects from the RSAC recommendation in developing the actual regulatory proposal. If the working group or RSAC is unable to reach consensus on recommendations for action, FRA moves ahead to resolve the issue through traditional rulemaking proceedings.

In 1996, FRA requested that RSAC address rulemaking revisions to the Track Safety Standards, found at 49 CFR part 213. RSAC agreed to the task and formed the Track Working Group to help develop the revisions. The Track Working Group decided by consensus that a new set of regulations addressing the safety of on-track roadway maintenance machines should be developed in a separate rulemaking. After publication of revisions to the Track Safety Standards in 1998, the Track Working Group appointed a six-member Task Group to help develop regulations addressing the safety of on-track roadway maintenance machines and hi-rail vehicles. The Task Group consisted of representatives from FRA, Association of American Railroads (AAR), BMWE, Norfolk Southern Railway Co., and an equipment supplier. The Task Group drafted proposed rule text which the Track Working Group recommended to the full RSAC for approval. RSAC approved the recommendations. FRA agreed that the recommendations provided a good basis for a proposed rule and subsequently published a Notice of Proposed Rulemaking (NPRM) on Roadway Maintenance Machine Safety on January 10, 2001. See 66 FR 1930.

FRA received comments from five organizations in response to the proposed rule. In February 2002, the Task Group met with most of the commenters, as well as other representatives from the industry, to clarify and further discuss the comments and suggestions provided by the commenters. The Task Group, by unanimous vote, made recommendations to the Track Working Group as to how the final rule should respond to each of the comments. The Track Working Group presented these recommendations to the full RSAC, which also agreed with them by unanimous vote. FRA considered the comments received on the NPRM and the recommendations of RSAC in preparing the final rule. FRA largely adopted the recommendations of RSAC in preparing the final rule, as explained in the preamble to the rule. See 68 FR 44388.

Following publication of the final rule, the AAR and the Union Pacific Railroad Company (UP) filed petitions seeking FRA's reconsideration and clarification of certain provisions of the rule. The specific issues raised by these petitioners, and FRA's response to their petitions, are discussed in detail in the “Section-by-Section Analysis” portion of the preamble, below. The “Section-by-Section Analysis” portion of the preamble addresses each provision of the final rule which FRA has amended or clarified. This will enable the regulated community to more readily compare this document with the preamble discussions contained in the final rule and will thereby aid in understanding the requirements of the rule.

This section contains requirements for safety equipment for all new on-track roadway maintenance machines. In the final rule, paragraph (a)(4) provided that all new on-track roadway maintenance machines have windshields made of safety glass or other material with similar properties, such as Lexan, as well as power windshield wipers. 68 FR 44409. In cases where traditional windshield wipers are incompatible with the windshield material, the final rule provided that a suitable alternative be available that offers the operator of the machine an equivalent level of vision. Id.

UP filed a petition seeking clarification whether the requirements of paragraph (a)(4) excluded those machines that would either require a windshield to be applied to a void space or otherwise provide no protection or other value to the operator. UP agreed that machines with enclosed cabs should be equipped with windshields to protect the operator, but raised the concern that there are many types of machines that either do not have the framework to accommodate a windshield or cannot practically be equipped with windshields. UP stated that such machines vary in weight from 10,000 to 30,000 pounds, are used in production gang consists, and do not travel long distances or at high speeds.

UP submitted to the docket several pictures of an example of such a machine, a rail anchor applicator. According to UP, the machine weighs approximately 10,000 pounds and, by design, does not have an enclosed cab. UP explained that, while it is possible to install a windshield on one or both sides of the operator by building a framework for the windshield, such a windshield would exist only to comply with a regulation and would not provide any protection or other value to the operator. UP stated that such a windshield would be an obstacle to the safe operation of the machine because it would be constantly in the way when loading anchors and operating the machine. Further, UP stated that windows on such a machine could not practically be equipped with wipers, would be a constant cleaning problem, and could impair the operator's vision. In addition to rail anchor applicators, UP cited the following machines as not appropriate for being equipped with windshields:

• Anchor spreaders;

• Anchor squeezers;

• Anchor remover machines;

• Multi-screw spiker machines;

• Multi-unscrew spiker machines;

• Multi drill/screw spiker machines;

• Production clip applicator/remover machines;

• Rail heater cars;

• Rail lifter production plate inserters;

• Spike driving machines;

• Spike puller machines; and

• Production profile grinders.

UP added that the basic configuration of some of these machines may change in the future and that, if future design changes result in a need for, or added value of, a windshield, UP would support the installation of a windshield.

Having reviewed UP's petition, FRA makes clear that it did not intend the rule to require that windshields be installed on all new on-track roadway maintenance machines. FRA intended to require that when windows are installed on new on-track roadway maintenance machines, they are made of safety glass or other material with similar properties. In addition, FRA intended that all such machines with windshields have power windshield wipers or suitable alternatives that provide the operator an equivalent level of vision if windshield wipers are incompatible with the windshield material.

Clearly, all machines with enclosed cabs, which necessarily require a windshield for the operator to see through, are subject to the requirements of this section. Yet, FRA does not intend to define the requirements of this section expressly in terms of machines with enclosed cabs. FRA believes its intent is more clearly conveyed by revising the text to state that the requirements of this paragraph apply only to new on-track roadway maintenance machines designed with windshields. FRA has amended the rule accordingly. Consequently, if a new on-track roadway maintenance machine is designed with a windshield, the windshield must be made of safety glass, or its equivalent, and be cleaned by power windshield wipers, or a suitable alternative means as appropriate.

In regard to the rail anchor applicator and other on-track roadway maintenance machines cited by UP for exclusion from the requirements of this paragraph, such machines are not subject to this paragraph's requirements as long as they are not designed with windshields. Based on UP's representation that these machines are not designed with windshields, they are thereby excluded from the requirements of this paragraph as long as that representation remains true.

This section specifies a schedule of retrofit items applicable to all existing on-track roadway maintenance machines. Pursuant to § 214.7, an existing on-track roadway maintenance machine is defined as any on-track roadway maintenance machine other than a new on-track roadway maintenance machine. Consequently, an existing on-track roadway maintenance machine is any on-track roadway maintenance machine in existence or ordered on or before December 26, 2003, or completed on or before September 27, 2004.

Paragraph (a) of the final rule required that each roadway worker transported on an existing on-track roadway maintenance machine have a safe and secure position that also provides protection from moving parts of the machine that could entangle clothing or body extremities. See 68 FR 44409. Following publication of the final rule, it became clear to FRA that this paragraph should be combined with § 214.517(g) of the final rule. Section § 214.517(g) also contained requirements for safe and secure positions for roadway workers riding on existing roadway maintenance machines. See 68 FR 44410. Specifically, § 214.517(g), like all of § 214.517, applied to existing on-track roadway maintenance machines manufactured on or after January 1, 1991, and required such machines to be equipped with handholds, handrails, or a secure seat or bench position for each roadway worker transported on the machine. Id.

FRA believes it unnecessary and potentially confusing to have two requirements in two separate sections concerning safe and secure positions for roadway workers riding on existing on-track roadway maintenance machines. Although the final rule carried forward these same requirements as proposed in the NPRM, the requirements contained in § 214.513(a) should have been combined with those contained in § 214.517(g) of the final rule. For a position to be “safe and secure” for a roadway worker to ride on an existing on-track roadway maintenance machine, the position must necessarily have handholds or handrails, or both, which the worker may grasp, or a secure seat or bench on which the worker may sit. In fact, in the preamble discussion of § 214.513(a) in the final rule, FRA stated that safe and secure positions include seats or foot platforms with handholds so that the roadway worker can maintain a stable and balanced position on the machine as it is moving down the track. See 68 FR 44397.

As revised, § 214.513(a) requires that each existing on-track roadway maintenance machine have a safe and secure position with handholds, handrails, or a secure seat or bench position for each roadway worker transported on the machine, and each such position shall be protected from moving parts of the machine. As noted above, FRA believes that this revision to § 214.513(a) and consolidation of the rule do not substantively change the rule's requirements.

This section specifies requirements for existing on-track roadway maintenance machines manufactured on or after January 1, 1991. Consequently, on-track roadway maintenance machines manufactured prior to 1991 are exempt from the requirements contained in this section. Existing on-track roadway maintenance machines that are subject to the requirements of this section must conform to these requirements after March 28, 2005.

Paragraph (b) of this section in the final rule provided that an existing on-track roadway maintenance machine have an operative heater when the ambient temperature is less than 50 degrees Fahrenheit, if the machine were or had been equipped with a heater. See 68 FR 44409, 44410. In preparing the final rule, FRA had modified the text of the proposed rule which, in part, specifically applied to a machine “equipped with a heater by the manufacturer.” See 66 FR 1944. FRA's modification to the text of the proposed rule made clear that the requirement also applied to machines that had previously been equipped with heaters that had since been removed. In addition, FRA revised the text that limited the application of this section to heaters equipped by the manufacturers of the on-track roadway maintenance machines. FRA noted that heaters could have been installed after the machines were manufactured, and it was not evident to FRA why heaters installed after manufacture should not be subject to the requirements of this paragraph. See 68 FR 44399.

In petitioning for reconsideration of this paragraph's requirements, the AAR stated that FRA should not apply this paragraph's requirements to machines that are or have previously been equipped with unauthorized heaters installed by railroad employees. Therefore, the AAR suggested that FRA amend paragraph (b) by limiting its application to heaters “installed by the manufacturer or the railroad.” FRA has adopted the AAR's suggestion. FRA recognizes that it did not intend to include within this paragraph's requirements heaters that had not been installed by the manufacturer or the railroad, and FRA believes that the suggested change fully addresses FRA's concern as stated in the final rule. As amended, paragraph (b) requires that each existing on-track roadway maintenance machine manufactured on or after January 1, 1991, have an operative heater when the machine is operated at an ambient temperature less than 50 degrees Fahrenheit and is equipped with, or has been equipped with, a heater installed by the manufacturer or the railroad.

As discussed in the analysis of § 214.513(a) above, FRA has removed paragraph (g) of § 214.517. Please see the above discussion of § 214.513(a) for a detailed explanation as to why this paragraph has been removed.

This section contains the requirements for identifying safe and secure positions for roadway workers riding on on-track roadway maintenance machines. The final rule prohibits a roadway worker (other than the machine operator) from riding on any on-track roadway maintenance machine unless a safe and secure position for each roadway worker on the machine is clearly identified by stenciling, marking, or other written notice. See 68 FR 44410. The final rule also provided that this requirement become applicable as of the effective date of the final rule, September 26, 2003.

The AAR petitioned for reconsideration of this section's applicability date. The AAR pointed out that the proposed rule would have given railroads one year to implement the requirement to identify safe and secure positions for roadway workers riding on on-track roadway maintenance machines. See 66 FR 1944. The AAR noted that FRA decided not to defer implementation of the requirement in the final rule for one year because FRA found it less burdensome than the proposed requirement. See 68 FR 44400. The proposed rule would have required railroads to provide written notice on all roadway maintenance machines—to identify safe and secure positions for workers on machines permitted to transport them, as well as to make known the prohibition against riding on machines on which workers were not permitted to ride. Instead, the final rule requires railroads to provide written notice only on machines permitted to transport riders. Nonetheless, the AAR stated that a deferral of the applicability date is necessary. According to the AAR, in many cases railroads would be unable to use stencils or decals to comply with the requirement since they could not be designed, made, and applied in such a short time frame. Without a deferral of the applicability date, the AAR believed that railroads would be forced to use written documentation, and noted that written documentation may be less effective than more permanent indications such as stencils and decals. The AAR asserted that a six-month deferral of the applicability date would give railroads sufficient time to implement an effective program to apply stencils and decals. The AAR added that it would also give railroads time to apply these stencils and decals while maintenance is performed on roadway maintenance machinery that is out of service during the fall and winter months.

Following the AAR's submission, FRA sought clarification as to whether the AAR intended exclusively to use stencils and decals to identify safety and secure riding positions on roadway maintenance machines—without the need to identify such positions on documents kept on the machines. The AAR stated that it expected stencils and decals to be used in the vast majority of cases because they are more “permanent.” Nevertheless, the AAR believed the option to identify safe and secure riding positions on documents kept on the machines to be essential, because in some cases stencils or decals are not practical. The AAR cited the example of large machines that can hold many people, such as the P-811 tie laying machine, for which stencils or decals would not be sufficient to identify safe and secure positions for riders. The AAR stated that written instructions would be more effective to communicate where to ride on this type of machine, as well as on large and complex machines such as big tampers, liners, and undercutters. In addition, the AAR noted that there will be machines on which stencils and decals cannot be readily applied to identify safe and secure riding positions. In this regard, the AAR cited the example of a safe riding location consisting of a grated floor and a pole for a rider to hold, but without a logical place to apply a stencil or a decal identifying the proper place for riding on the machine.

Having reconsidered the requirements of this section, FRA has to decided to defer this section's applicability date. As amended, the requirements of this section become applicable on or after March 1, 2004. FRA understands from the AAR's submission that in the vast majority of cases railroads will use stencils or decals to identify safe and secure riding positions on roadway maintenance machines. FRA encourages the use of stencils or decals, or both, to identify safe and secure riding positions for workers on roadway maintenance machines. In addition, FRA recognizes that a significant number of roadway maintenance machines are out of service during the months of cold weather. Consequently, during this time, railroads would have the opportunity to stencil or apply decals to out-of-service roadway maintenance machines as they undergo normal maintenance, thereby minimizing the cost of compliance. FRA believes that deferring the applicability date to March 1, 2004, affords railroads sufficient time to stencil or apply decals to identify safe and secure riding positions on those machines they intend to so mark. Moreover, FRA expects that for those machines whose safe and secure riding positions will be identified on documents kept on the machines, and therefore will not necessitate the work of physically marking the positions, extending the applicability date to March 1, 2004, is clearly sufficient. (FRA notes that it makes no specific finding as to the impracticability or impracticality of stencilling or applying decals to the roadway maintenance machines cited by the AAR in its clarifying submission, as railroads continue to have the option of using documents kept on the machines to identify safe and secure riding positions in circumstances as they deem appropriate.)

FRA makes clear that, even though it is extending the time to identify safe and secure positions for workers riding on roadway maintenance machines, it is not extending the time to provide the safe and secure positions themselves for workers riding on these machines. For instance, pursuant to § 214.513, each “existing” on-track roadway maintenance machine must have a safe and secure position with handholds, handrails, or a secure seat or bench position for each roadway worker transported on the machine, as noted above. Each position must also be protected from moving parts of the machine. Since an “existing” on-track roadway maintenance machine is any on-track roadway maintenance machine in existence or ordered on or before December 26, 2003, or completed on or before September 27, 2004, the regulation will continue to require that every worker riding a roadway maintenance machine be provided a safe and secure position. FRA is extending only the compliance date to identify such positions on the machines.

This section requires that flagging kits be available when on-track roadway maintenance machines and hi-rail vehicles are operated over trackage subject to a railroad operating rule requiring flagging. Flagging kits must comply with the requirements specified in the operating rules of the railroad over which the equipment is operated. This requirement applies to each on-track roadway maintenance machine and hi-rail vehicle that is operated alone or as the leading or trailing piece of equipment in a roadway work group operating under the same occupancy authority. Flagging kits are not required for roadway maintenance machines and hi-rail vehicles that are operated in the middle of a single roadway work group. However, the vehicles must be under the same occupancy authority to be considered part of a single group.

Following publication of the final rule, FRA recognized that this section could state more clearly which equipment is subject to the requirements. Accordingly, FRA has slightly revised the rule text and changed the section's format to make the requirements clearer. However, FRA has made no substantive change to the requirements of this section. FRA has simply restated the requirements in a different way to make them more comprehensible.

Appendix A to this part contains the schedule of civil penalties associated with violations of the regulations under subpart D to part 214. FRA is making one change to this schedule in conformance with a change to § 214.517, which is discussed above.

Prior to issuing the July 28, 2003 final rule, FRA prepared and placed in the docket a regulatory analysis addressing the economic impact of the final rule. The rule was evaluated in accordance with existing policies and procedures and was considered to be non-significant under both Executive Order 12866 and DOT policies and procedures ( see 44 FR 11034, February 26, 1979). (For a more detailed discussion, see 68 FR 44405.) This response to the petitions for reconsideration of the final rule is likewise considered to be non-significant under both Executive Order 12866 and DOT policies and procedures. This regulatory action generally clarifies the requirements contained in the rule or allows for greater flexibility in complying with the rule. In particular, deferring the applicability date of § 214.518 will reduce the cost of complying with the rule. However, the actual cost reduction has not been calculated. Nevertheless, this regulatory action will have a minimal net effect on FRA's original analysis of the benefits and costs associated with the final rule.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. ) and Executive Order 13272 require a review of rules to assess their impact on small entities. Prior to issuing the July 28, 2003 final rule, FRA prepared and placed in the docket a Regulatory Flexibility Assessment (RFA) which assessed the small entity impact by the rule. FRA certified that the final rule is not expected to have a “significant” economic impact on a “substantial” number of small entities under the Regulatory Flexibility Act and Executive Order 13272. (For a more detailed discussion, see 68 FR 44405, 44406.) This response to the petitions for reconsideration of the final rule generally clarifies the requirements contained in the rule or allows for greater flexibility in complying with the rule. Consequently, FRA certifies that this regulatory action is not expected to have a “significant” economic impact on a “substantial” number of small entities under the Regulatory Flexibility Act and Executive Order 13272. FRA concludes that there are no substantial economic impacts on small units of government, business, or other organizations arising from this regulatory action.

This response to the petitions for reconsideration of the final rule changes none of the information collection requirements contained in the final rule. It changes neither any individual requirement's burden nor the total burden for this collection of information.

FRA has evaluated this response to the petitions for reconsideration of the final rule in accordance with its procedures for ensuring full consideration of the environmental impact of FRA actions, as required by the National Environmental Policy Act (42 U.S.C. 4321 et seq. ), other environmental statutes, Executive Orders, and DOT Order 5610.1c. This regulatory action meets the criteria that establish this as a non-major action for environmental purposes.

FRA has analyzed this response to the petitions for reconsideration of the final rule in accordance with the principles and criteria contained in Executive Order 13132 issued on August 4, 1999, which directs Federal agencies to exercise great care in establishing policies that have federalism implications. See 64 FR 43255. In the NPRM, FRA acknowledged that the rule as proposed could have federalism implications. The governance of safety of hi-rail vehicles could have an unintended effect on State laws addressing the safety of these vehicles as they are operated over roads and highways, even though the rule is meant to cover the safety of hi-rail vehicles only while they are operated on railroad tracks. Although the requirements for hi-rail vehicles are not intended to preempt any State laws addressing motor vehicles, FRA requested comment concerning what State laws, if any, could be impacted by this rule. FRA received no comment in response to the request.

The RSAC, which recommended the proposed rule, has as permanent members two organizations representing State and local interests: the American Association of State Highway and Transportation Officials and the Association of State Rail Safety Managers. The RSAC regularly provides recommendations to the FRA Administrator for solutions to regulatory issues that reflect significant input from its State members. In light of the above, FRA concludes that this response to the petitions for reconsideration of the final rule has no federalism implications.

Pursuant to the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law.” (See Section 201). Section 202 of the Act further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in promulgation of any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement * * *” detailing the effect on State, local and tribal governments and the private sector. This response to the petitions for reconsideration of the final rule will not result in the expenditure, in the aggregate, of $100,000,000 or more in any one year, and thus preparation of a statement is not required.

Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” See 66 FR 28355; May 22, 2001. Under the Executive Order a “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking: (1)(i) that is a significant regulatory action under Executive Order 12866 or any successor order, and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. FRA has evaluated this response to the petitions for reconsideration of the final rule in accordance with Executive Order 13211. FRA has determined that this regulatory action is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Consequently, FRA has determined that this regulatory action is not a “significant energy action” within the meaning of the Executive Order.

Anyone is able to search the electronic form of all public submissions to any of our dockets by the name of the individual making the submission (or signing the submission, if made on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or by visiting http://dms.dot.gov.

The Santa Ana sucker inhabits streams that are generally small and shallow, with currents ranging from swift (in canyons) to slow (in the bottomlands). All the streams are subject to periodic severe flooding (Moyle 1976). Santa Ana suckers appear to be most abundant where the water is cool (less than 22 °Celsius [C]) (72 °Fahrenheit), unpolluted and clear, although they can tolerate and survive in seasonally turbid water (Moyle 1976, Moyle and Yoshiyama 1992, Saiki 2000). Santa Ana suckers feed mostly on algae, which they scrape off of rocks and other hard substrates, with aquatic insects making up a very small component of their diet. Larger fish generally feed more on insects than do smaller fish (Greenfield et al. 1970, Moyle 1976).

Santa Ana suckers generally live no more than 3 years (Greenfield et al. 1970). Spawning generally occurs from early April to early July. A peak in spawning activity occurs in late May and June (Greenfield et al. 1970, Moyle 1976). However, the spawning period may be variable and protracted. Recent field surveys on the East Fork of the San Gabriel River found evidence of an extended spawning period. These surveys found small juveniles (less than 30 millimeters [mm] standard length (1.2 inch [in]) in December 1998, and March of 1999 at the San Gabriel River site (Saiki 2000). These data indicate that spawning may be very protracted in this stream, and begin as early as November. Fecundity appears to be exceptionally high for a small sucker species (Moyle 1976). Total fecundity of six females varying in size from 78 mm (3.1 in) to 158 mm (6.2 in) ranged from 4,423 to 16,151 eggs, respectively (Greenfield et al. 1970). The combination of early sexual maturity, protracted spawning period, and high fecundity should allow the Santa Ana sucker to quickly repopulate streams following periodic flood events that can decimate populations (Moyle 1976).

The Santa Ana sucker appears to be native to the larger streams of the Los Angeles Basin; the Los Angeles, San Gabriel, and Santa Ana River drainage systems in Los Angeles, Orange, Riverside, and San Bernardino counties (Smith 1966). Although historic records are scarce, Santa Ana suckers presumably ranged from near the Pacific Ocean to the uplands of the Los Angeles and San Gabriel river systems, and to at least Pump House #1 (near the San Bernardino National Forest boundary) in the Santa Ana River (Swift et al. 1993). The species has experienced declines throughout most of its range (Moyle et al. 1995; Swift et al. 1993), and is now restricted to three noncontiguous populations: (1) Lower and middle Santa Ana River; (2) East, West, and North Forks of the San Gabriel River; and (3) lower Big Tujunga Creek.

The Administrative Procedure Act (APA) generally requires that an agency provide public notice of and an opportunity for public comment on all proposed rulemakings (5 U.S.C. 553). However, section 553(b)(B) recognizes an exception to those requirements when for good cause an agency finds (and incorporates the finding and a brief statement of the reasons therefore into the rule) that notice and public procedure thereon are “impracticable, unnecessary or contrary to the public interest.” Similarly, section 553(d) of the APA allows publication of a final rule to take effect immediately upon publication if the agency for good cause so provides in the final rule. The Service finds good cause exists with regard to this final rule designating critical habitat for the Santa Ana sucker to forgo the standard notice and comment procedure provided by the APA because compliance with that procedure would be impracticable and contrary to the public interest within the meaning of 5 U.S.C. 553(b)(B). The Service further finds good cause under 5 U.S.C. 553(d) to make this final rule effective immediately upon publication in the Federal Register . The bases for our “good cause” findings are summarized below.

The Service is required by court order to designate critical habitat for the Santa Ana sucker by February 21, 2004. We have determined that we do not have sufficient time or budgetary resources to promulgate this rule under the standard notice-and-comment procedures mandated by the APA at 5 U.S.C. 533 and still meet the court's deadline. On February 26, 2003, the United States District Court for the Northern District of California held that the Service had failed to designate critical habitat for the listed populations of Santa Ana sucker within the statutory timeframe and ordered the Service to complete a final critical habitat designation for the Santa Ana sucker by February 21, 2004 ( California Trout v. DOI , No. 97-3779 (N.D.Cal.)). However, due to lack of funding, the Service was unable to begin work on the critical habitat designation in Fiscal Year (FY) 2003. Complying with numerous court orders and court-approved settlement agreements caused the Service to exhaust essentially its entire FY 2003 budget for critical habitat designations by the end of July, well before the end of the fiscal year. Anticipating this result, the Service suspended work on a number of designations that were required by court orders or settlement agreements until additional funding became available. This included the designation of critical habitat for the Santa Ana sucker.

The Service initiated work on the proposed designation for the Santa Ana sucker on October 1, 2003, the beginning of FY 2004, even though we had not yet received a final appropriation for this fiscal year. As soon as we received a final appropriation, we requested more time from the district court to complete a proposed and final designation. In our request we documented for the court the numerous steps that must be completed in order to promulgate a final critical habitat rule and time required to complete those steps and produce a legally defensible rule. We projected that a period of 24 months beginning on October 1, 2003, would be required to comply with applicable statutory requirements, including the mandated public review process. However, the court declined to grant our motion for additional time in her January 30, 2004, ruling from the bench, thereby keeping in effect the order that the Service complete a final critical habitat designation by February 21, 2004. Compliance with the APA-required notice-and-public comment procedure in promulgating a final critical habitat designation for the Santa Ana sucker is impracticable given the Service's inability to work on the rule in FY 2003 due to inadequate budgetary resources and the inadequate 4.5-month time period available in FY 2004 to publish a proposed rule, allow for public comment, complete an economic analysis of the proposed designation, respond to public comment, and finalize the critical habitat designation. Therefore, we find good cause for and invoke the exception under section 553(b)(B) of the APA to publish this final rule without following the standard public notice and comment procedure.

In its 2003 order, the court also enjoined the Service from consulting under section 7(a)(2) of the Act until we publish a final rule designating critical habitat for the Santa Ana sucker. Under section 7, each Federal agency is required to consult with us to ensure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any listed species or result in the adverse modification of the designated critical habitat, if any, of the species. Consultation ensures that impacts to listed species are fully considered by the Federal action agency before it proceeds with the proposed action; consultation also ensures that the action does not go forward if it is likely to jeopardize the continued existence of the species. In addition, where we conclude that the proposed Federal action is not likely to jeopardize the species, section 7 requires us to prescribe reasonable and prudent measures, and specific terms and conditions to implement those measures, which the action agency, and its applicant, if any, must carry out to minimize the impacts of any take of a listed animal species likely to result from the proposed Federal action (16 U.S.C. 1536(b)(4)).

As a consequence of the injunction on consulting on any proposed Federal action that may affect the Santa Ana sucker, Federal action agencies and the Service are unable to meet our respective responsibilities pursuant to section 7(a)(2) of the Act. In the case of emergencies involving imminent risks to human health and safety ( e.g. , replacement of bridges threatened by floods), Federal agencies may be forced to undertake the projects absent consultation with us and thus without benefit of our determination regarding potential jeopardy and identification of reasonable and prudent alternatives to the proposed action that would avoid jeopardy. In addition, where such projects are not likely to result in jeopardy, the proscription on consultation eliminates our ability to identify reasonable and prudent measures to minimize the impacts of take on the sucker resulting from the proposed project. We are currently precluded from consulting with agencies even after the emergency has passed to evaluate the impacts of the emergency actions on the Santa Ana sucker and provide measures to the agencies to minimize the effects of any take on the species. Our current inability to complete section 7 consultations constitutes an emergency posing a significant risk to the well-being of Santa Ana sucker because of our inability to evaluate and minimize or eliminate threats to the species from proposed Federal actions that are also necessary to protect public health and safety.

In addition, the injunction has had the immediate effect of significantly delaying the orderly, expeditious, and timely completion of projects that are currently being planned and are needed to protect human life and safety. Examples of projects that would affect the sucker that have been delayed as a result of the Court's injunction include the replacement of the Van Buren Boulevard Bridge to meet seismic safety standards and the replacement of the River Road Bridge due to flooding.

The Van Buren Boulevard bridge replacement project in Riverside County would replace the existing bridge with a new longer span that would have no support pilings within the stream channel and increase the width of the bridge from two lanes to four lanes. The bridge is being replaced because of the need to meet updated seismic safety requirements. This bridge provides the only crossing of the Santa Ana River for a 9-mile radius. In the next 40 years, there is an 80 percent chance for an earthquake to occur that can damage or destroy the existing bridge. This bridge provides for local traffic between City of Riverside and the communities of Pedley, Glen Avon, Mira Loma, and Jurupa. Average daily traffic at this Santa Ana River bridge crossing in 2001 was 54,300 vehicles. The 2005 traffic projection at this location is 57,500 average daily vehicles. An earthquake of this magnitude would eliminate an important bridge crossing of the Santa Ana River for local use and emergency vehicles. The driving distance would increase by as much as nine miles for emergency response vehicles. The Federal Highway Administration requested initiation of formal consultation on this project with the Service on November 14, 2002, to address effects of project implementation on the Santa Ana sucker and least Bell's vireo. The biological opinion was due to be issued on March 29, 2003.

The replacement of the River Road bridge is necessary because the existing bridge is at high risk of being damaged by high flows in the Santa Ana River. The River Road bridge is particularly sensitive to high flows because of its low clearance above the existing riverbed. During high flows, large amounts of sediment and debris are deposited adjacent to the bridge causing floodwaters to overtop the bridge. Under these flood conditions, the high flows will eventually push the bridge off its pilings and cause a catastrophic loss of the bridge. Riverside County estimates that if two or more 2-year storm events were to occur consecutively, the bridge may be shifted off its pilings and portions of the bridge could be destroyed. In the last 10 years, the existing bridge and approach roadways were closed to traffic four times because the bridge had been shifted off its pilings as a result of floodwaters. Although a sand mining operation has been implemented as a temporary measure to provide additional freeboard for flood flows, this measure will not be sufficient to protect the River Road bridge if multiple and consecutive storms affect this watershed. Therefore, the replacement of the existing River Road bridge with a new bridge that provides a greater clearance above the existing riverbed is needed. Replacement of the River Road bridge had been anticipated to be completed in 2006 and requires funding from the Federal Highway Administration. Because replacement of the bridge “may affect” the Santa Ana sucker, a section 7 consultation with Federal Highway Administration will be required. In addition to providing traffic circulation to residents, the existing River Road bridge is the only emergency vehicle access route across the Santa Ana River within a 7-mile radius for the cities of Norco and Corona and unincorporated Riverside County. If the River Road bridge is damaged by storms and cannot be used, then driving distance for emergency response vehicles will be increased by at least seven miles.

As described by the above examples, the injunction has resulted in delays for projects that are needed to protect human life and safety. The injunction and ensuing delays may very well be the root cause of future emergencies that involve imminent risks to human health and safety because the Federal action agency was unable to complete their projects in an orderly, expeditious, and timely manner. For example, the delay in completing the bridge replacement projects significantly increases the risk of catastrophic losses of these bridges from seismic and flooding events and significant delays in providing emergency response services.

As is the nature of rivers and weather, flood events can happen swiftly and unpredictably with dire consequences to human health and safety and loss of property. Structures and property along the Santa Ana River are at risk from emergency flood events. Apart from the specific projects identified above, other emergency conditions along the Santa Ana River may be avoided by the orderly, expeditious, and timely completion of the draft Programmatic Consultation on the Santa Ana Sucker Conservation Program and Associated Maintenance and Operation Activities of Existing Water Facilities on the Santa Ana River (SAS Programmatic Consultation). For example, Riverside County Flood Control and Water Conservation District (RCFCD) could receive authorization from the U.S. Army Corps of Engineers to maintain the structural integrity of levees and groins that protect industrial, commercial, and residential property along the Santa Ana River as a result of the SAS Programmatic Consultation. The RCFCD has predicted that the loss of the levee could result in the introduction of pollutants from residential, commercial, and industrial properties into the Santa Ana River as well as the loss of up to 3,000 acres of developed floodplain. The introduction of pollutants would significantly degrade the water quality and habitat of the Santa Ana River, as well as result in mortality of suckers. In addition, the loss of the levees could result in a loss of life and property. On September 23, 2003, the RCFCD notified the Service and the Corps that a portion of the northwestern levee along the Santa Ana River was being undermined by the low-flow channel. The RCFCD proposed to divert the low-flow channel away from the levee to prevent the destruction of the levee. The Corps declared the proposed diversion an emergency action, and requested that the Service provide them with avoidance and minimization measures for the Santa Ana sucker. Because of the injunction we were unable to complete an emergency section 7 consultation with the Corps, but we did recommend measures to avoid and minimize impacts to the sucker. The Corps issued an emergency Regional General Permit No. 63 permit that incorporated our recommended measures and RCFCD completed the diversion and repair of the levees. The diversion of the low-flow channel away from the levees was an action that was anticipated to be addressed in the SAS Programmatic Consultation. If this action had been addressed as part of a completed consultation, the need for an emergency permit would have been eliminated and the risk to human life and property would have been significantly reduced.

The injunction against section 7 consultations is also preventing the Service from completing consultations on major habitat restoration projects in the Santa Ana River designed to improve the status of the sucker and its habitat; this also constitutes an emergency posing a significant risk to the well-being of the Santa Ana sucker. The SAS Conservation Program is a multi-agency partnership of Federal and local government agencies and the private sector that encourages a river-wide approach to conservation of the Santa Ana sucker within the Santa Ana River and its tributaries; increases the knowledge base to implement recovery strategies for the sucker in the Santa Ana River; ensures that each participating agency minimizes, to the extent possible, effects of routine activities on the sucker; and develops habitat restoration and enhancement techniques for degraded habitat. The SAS Conservation Program has already benefited the Santa Ana sucker by improving our recommended avoidance and minimization measures for ongoing activities. For example, research funded by the SAS Conservation Program has resulted in a detailed description of spawning and nursery habitat. In addition, appropriate habitat restoration techniques are being developed that will be essential to maintain the sucker population in the Santa Ana River.

Finally, the current injunction has prevented the Service from completing internal consultation on the Western Riverside Multiple Species Habitat Conservation Plan (MSHCP) because the Santa Ana sucker is included as a “covered species adequately conserved” in the proposed plan and will otherwise be affected by the plan. The Western Riverside MSHCP will conserve over 94 percent of the modeled habitat within western Riverside County and all of the known and potential refugia and spawning areas within the MSHCP conservation area. In addition, the Western Riverside MSHCP will assess and implement measures to improve water quality, remove nonnative competitor and predator species, and eliminate barriers to fish passage within the Santa Ana River. The removal of nonnative predatory species should improve and secure the survival of the sucker in the Santa Ana River. The removal of barriers to fish passage should return the population to a contiguous breeding population. In addition, the maintenance and improvement of water quality standards are essential to a species that inhabits the highly urbanized Santa Ana River watershed, and depends on tertiary-treated wastewater for much of its spawning habitat.

Until a final critical habitat rule is published for the Santa Ana sucker, the injunction will remain in place and prevent completion of section 7 consultations on important projects necessary to protect public health and safety while also protecting the sucker, or on projects specifically designed to benefit the sucker. We therefore find that good cause exists under 5 U.S.C. 553(b)(B) to exempt this final rule from APA notice and comment procedures. In the unusual circumstances presented here, compliance with those procedures would be contrary to the public interest.

We also find that good cause exists under 5 U.S.C. 553(d) to make this final rule effective immediately for the reasons stated above with regard to section 553(b)(B). The immediate designation of critical habitat is necessary for the following reasons: (1) To comply with the district court's order; (2) to conduct section 7 consultations and prepare written concurrences regarding projects funded, permitted, or carried out by Federal agencies that may affect the Santa Ana sucker or its essential habitat; (3) to ensure those activities will not jeopardize the continued existence of the species; and (4) to ensure Federal agencies can comply with the requirements of the Act, including section 9.

Please see the final listing rule for the Santa Ana sucker for a description of Federal actions through April 2000 (65 FR 19686; April 12, 2000). On July 9, 2001, California Trout, Inc., the California-Nevada Chapter of the American Fisheries Society, the Center for Biological Diversity, and the Friends of the River (plaintiffs) filed a 60-day notice of intent to sue over our failure to designate critical habitat for the Santa Ana sucker. The plaintiffs filed a second amended complaint for declaratory judgment and injunctive relief on March 19, 2002, with the U.S. District Court for the Northern District of California. On February 26, 2003, the district court ordered the Service to designate a final critical habitat for the Santa Ana sucker by no later than February 21, 2004, and enjoined the Service from issuing any section 7 concurrence or biological opinion on a proposed Federal action that “may affect” the Santa Ana sucker until such time as the final critical habitat for the Santa Ana sucker is designated.

Critical habitat is defined in section 3(5)(A) of the Act as the specific areas within the geographical area occupied by the species at the time it is listed on which are found those physical or biological features essential to the conservation of the species and which may require special management considerations or protection and those specific areas outside the geographic area occupied by the species at the time it is listed upon a determination by the Service that such areas are essential for the conservation of the species. Under section 4(a)(3) and (b)(2) of the Act we are required to designate critical habitat to the maximum extent prudent and determinable on the basis of the best scientific data available and after taking into account the economic impact of specifying any particular area as critical habitat.

In the final listing rule (65 FR 19686), we indicated that designation of critical habitat was not determinable because the “knowledge and understanding of the biological needs and environmental limitations of the Santa Ana sucker and the primary constituent elements of its habitat are insufficient to determine critical habitat for the fish.” We also indicated that the Orange County Water District, County of Orange, Los Angeles County Department of Public Works, National Fish and Wildlife Foundation, and the Biological Resources Division of the U.S. Geological Survey were funding and implementing research on the environmental limitations of the Santa Ana sucker. This research has been completed and a final report has been published (Saiki 2000). Based on the available information on the biology of the Santa Ana sucker, we now believe that critical habitat for the Santa Ana sucker is determinable. We also find that there is no basis for a not prudent finding because we do not believe that the designation of critical habitat will result in an increase in the degree of threat from activities prohibited under section 9 of the Act. We are not aware of any apparent habitat destruction that has occurred since the listing of the Santa Ana sucker. Therefore, we find that designation of critical habitat for the Santa Ana sucker is prudent and determinable.

We mapped critical habitat based on the known distribution and habitat requirements of the Santa Ana sucker using published literature and available reports. We delineated essential habitat on aerial and satellite imagery on a GIS system along each stream reach. Essential habitat is the stream and the associated riparian habitat.

In accordance with sections 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas are critical habitat, we are required to consider those physical and biological features (primary constituent elements) that are essential to the conservation of the species and that may require special management considerations or protection. These include, but are not limited to: Space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, rearing (or development) of offspring; and habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.

The primary constituent elements for the Santa Ana sucker were determined by reviewing studies that examined the habitat requirements and ecology of the sucker in the Santa Ana River (Allen 2003; Baskin and Haglund 2001; Haglund et al. 2003; Saiki 2000; Swift 2001), the San Gabriel River (Saiki 2000; Haglund and Baskin 2002), and the Santa Clara River (Greenfield et al. 1970). Primary constituent elements essential for the conservation of the sucker are found in an ecosystem that includes a functioning hydrological system that experiences peaks and ebbs in water volume and maintains a sand, gravel, and cobble substrate in a mosaic of sandy stream margins, deep water pools, riffles ( i.e. , well-oxygenated, shallow water over rough substrate), and runs ( i.e. , shallow water over generally smooth substrate); sufficient water volume and quality; and complex, native floral and faunal associations.

The Santa Ana sucker evolved in a typical southern Californian hydrological regime that included periodic flooding (Greenfield et al. 1970). Life history characteristics, such as prolonged breeding periods and short hatching times, have allowed the sucker to survive in dynamic hydrological systems. Periodic floods may also remove exotic predators and competitors (Swift 2001). Therefore, a functioning hydrological system should experience peaks and ebbs in the water volume throughout the year. The hydrological regime should also maintain a mosaic of sand, gravel, cobble, and boulder substrates in a series of sandy stream margins, riffles, runs, and pools. Adult suckers spawn in gravel beds while larvae and juveniles are generally associated with shallow, sandy margins during their development (Haglund et al. 2003). Gravel and cobble substrate, often associated with riffles, provide habitat for algae and macroinvertebrates, the primary prey of adult suckers. Pools provide food for adult suckers and refuge from warm water (Allen 2003).

Sufficient water volume, described in velocity and depth, is an important element of habitat essential for the conservation of the Santa Ana sucker. Water volume may vary between seasons, but enough water should be present during the spawning season (March 1-June 30) to support reproduction and larval development. For the remainder of the year, water volume must be sufficient to support prey of the sucker and the development and growth of the sucker. In the San Gabriel River, Haglund and Baskin (2002) found that adult and juvenile suckers were present in bottom velocities between 0.17 and 0.68 feet per second, while mid-column velocities reached 1.95 feet per second. Haglund et al. (2003) reported spawning in bottom velocities of 0.65 and 0.77 feet per second.

Depth is also an important descriptor of water volume. Saiki (2000) showed that suckers were fairly equally distributed among depths of 1 to 39 cm in the Santa Ana River and among depths of 1 to 69 cm in the San Gabriel River. In the Santa Ana River, Swift (2001) reported detecting suckers in depths as great as 150 cm. Suckers were present in pools as deep as 200 to 300 cm (Brandt Allen, University of California at Davis, pers. comm. 2004). Suckers likely prefer various water depths depending on their life history stage and activity. Larval and early juvenile suckers prefer shallow margins of 5 to 10 cm in depth (Haglund et al. 2003) while adult suckers prefer deep pools of 40 cm or greater (Haglund and Baskin 2002). Adult suckers prefer deep pools for feeding and refuge, riffles of varying depths for spawning, and riffles and runs of varying depths for movement between pools.

Water quality must support sucker reproduction, diet, and development. Saiki (2000) reported sucker abundance was negatively correlated with turbidity. Saiki (2000) found that suckers were more abundant at a site in the San Gabriel River, where turbidity averaged 5.5 Nephelometric turbidity units (NTUs) and ranged from 0.1 to 165.0 NTUs than at a site in the Santa Ana River, where turbidity averaged 21.7 NTUs and ranged from 0.6 to 405.0 NTUs. Suckers were not detected at a different site in the Santa Ana River, where turbidity averaged 57.4 NTUs and ranged from 1.9 to 214.0 NTUs (Saiki 2000). However, in 2000, Baskin and Haglund (2001) captured 10 suckers immediately upstream of this site in water that was between 85 and 112 NTUs. Therefore, a high turbidity level does not necessarily eliminate suckers from using habitat. Saiki (2000) determined that suckers likely avoid continuously turbid conditions but could survive in seasonally turbid conditions. In addition to turbidity, temperature appears to be a limiting factor in sucker distribution. Suckers were found in waters between 15 and 28 °C in the Santa Ana River and suckers likely avoid water over 30 °C (Swift 2001). Similarly, Greenfield et al. (1970) reported suckers from the Santa Clara River in water that was 10 to 26 °C.

Suitable sucker habitat must contain algae, aquatic emergent vegetation, macroinvertebrates, and riparian vegetation. Suckers feed by scraping algae, insects, and detritus from gravel and cobble substrate (Greenfield et al. 1970; Saiki 2000). In addition, riparian vegetation and emergent aquatic vegetation moderate stream temperature (Allen 2003), and provide additional sources of detritus and insects (Diana 1995). Riparian and aquatic emergent vegetation can also provide refuge from predators. Therefore, complex native floral and faunal associations are required for sucker survival.

The primary constituent elements for the sucker are the following:

(1) A functioning hydrological system that experiences peaks and ebbs in the water volume throughout the year;

(2) A mosaic of sand, gravel, cobble, and boulder substrates in a series of riffles, runs, pools and shallow sandy stream margins;

(3) Water depths greater than 3 cm and water bottom velocities greater than 0.03 meters per second;

(4) Non-turbid conditions or only seasonally turbid conditions;

(5) Water temperatures less than 30 °C; and

(6) Stream habitat that includes algae, aquatic emergent vegetation, macroinvertebrates, and riparian vegetation.

The designated critical habitat encompasses Santa Ana sucker habitat throughout the range of the listed species in the United States (Los Angeles and San Bernardino Counties, California). Essential habitat for the Santa Ana sucker in San Bernardino, Riverside County and Orange County has been excluded under section 4(b)(2) of the Act. Areas designated as critical habitat are under Federal and private ownership. The approximate area of designated critical habitat by county and land ownership is shown in Table 1.

We have designated three critical habitat units based on the geographical location of the three existing, listed populations of Santa Ana sucker. Major tributaries that are important for their role in contributing water, sediment, and improved water quality (components of the primary constituent elements) for the species are included. Each of these few remaining disjunct populations is essential to maintain genetic diversity, decrease the likelihood of the species becoming extinct due to small numbers, and decrease the likelihood of species extinction due to stochastic events ( e.g. , floods) (Lande 1988, Saccheri et al. 1998). The fragmented and disjunct distribution of the species prevents any possibility that an extirpated population would recover. The areas being designated are either within the geographical area occupied by one of the three populations of Santa Ana sucker, contain those physical and biological features essential for the conservation of that population and may require special management considerations or protection, or are outside of the geographic area occupied by the species but are nevertheless essential for the conservation of the sucker. Descriptions of each unit and the reasons for designating them as critical habitat are presented below.

The Santa Ana River Unit consists of Unit 1A, Northern Prado Basin and Unit 1B, Santa Ana Wash and the essential habitat along portions of the mainstem of the Santa Ana River and the following tributaries: City Creek, Mill Creek, Chino Creek, and Cucamonga Creek. The occupied essential habitat adjacent to Unit 1A (Northern Prado Basin) and the occupied essential habitat downstream from Unit 1B (Santa Ana Wash) has been excluded under section 4(b)(2). The Santa Ana River supports one of three listed populations of the Santa Ana sucker. Approximately 60 percent of the total remaining range of the listed Santa Ana sucker is in the Santa Ana River (65 FR 19686).

Our designation excludes essential occupied habitat along portions of the Santa Ana River that are within the draft Western Riverside Multiple Species Habitat Conservation Plan (Riverside County) or the SAS Conservation Program (Orange, Riverside, and San Bernardino counties). The bases for those exclusions are summarized below under “Section 4(b)(2) Exclusions.”

We are designating Northern Prado Basin (Unit 1A) and Santa Ana Wash (Unit 1B) because these essential habitat areas are not covered by the draft Western Riverside County Multiple Species Habitat Conservation Plan or the SAS Conservation Program. While Units 1A and 1B are not known to be occupied, they are essential for the conservation of the Santa Ana sucker because they provide and transport sediment necessary to maintain the preferred substrates utilized by this fish (Dr. Thomas Haglund, pers. comm. 2004; Dr. Jonathan Baskin, Professor Emeritus, California State Polytechnic University, Pomona, pers. comm. 2004; NOAA 2003); convey stream flows and flood waters necessary to maintain habitat conditions for the Santa Ana sucker; and support riparian habitats that protect water quality in the downstream portions of the Santa Ana River occupied by the sucker. Moreover, the Northern Prado Basin Unit is contiguous with occupied habitat and may support the Santa Ana sucker. City Creek, a tributary of the Santa Ana River, was documented as containing Santa Ana suckers as recently as 1982, but has not been recently surveyed. Protection of these unoccupied areas is essential to provide the downstream habitat conditions necessary to maintain the Santa Ana River population of the sucker (Dr. Thomas Haglund, pers. comm. 2004; Dr. Jonathan Baskin, Professor Emeritus, California State Polytechnic University, Pomona, pers. comm. 2004).

Unit 1B is essential because it provides the source for preferred spawning and feeding substrate of the Santa Ana sucker. Although portions of Unit 1B (Santa Ana Wash) are generally dry during the summer, this portion of the river has a higher gradient and a greater percentage of gravel and cobble substrate than the occupied areas that are downstream (Dr. Jonathan Baskin, Professor Emeritus, California State Polytechnic University, Pomona, pers. comm. 2004). Suckers spawn over gravel substrates where their eggs can adhere to gravel before hatching into larvae. Winter flows from upstream areas annually replenish this substrate and clean sand from it (Dr. Jonathan Baskin, Professor Emeritus, California State Polytechnic University, Pomona, pers. comm. 2004; Dr. Thomas Haglund, pers. comm. 2004; NOAA 2003). In addition, suckers feed by scraping algae, insects, and detritus from gravel and cobble. Therefore, the upstream source of spawning and feeding substrates (gravel and cobble) are essential to the reproductive ability and development of the sucker in the downstream occupied reaches (Dr. Jonathan Baskin, Professor Emeritus, California State Polytechnic University, Pomona, pers. comm. 2004; Dr. Thomas Haglund, pers. comm. 2004).

Unit 1A and Unit 1B are essential to the conservation of the sucker because they maintain a relatively natural hydrograph. The Santa Ana sucker evolved in the naturally dynamic hydrological systems of southern California. Therefore, as a larger intact river system has greater potential to provide a more natural hydrograph, Unit 1A and Unit 1B are essential to maintain the natural hydrograph of the Santa Ana River and ensure the continued existence of the sucker in the Santa Ana River (Dr. Thomas Haglund, pers. comm. 2004). The importance of a natural hydrograph for native fishes has been demonstrated for many systems (Moyle and Light 1996). For example, nonnative fishes can more easily invade systems where the natural hydrograph has been disrupted by dams and reservoirs and these nonnative fishes can contribute to the decline of native fishes through predation and competition (Moyle et al. 1986).

Unit 1A and Unit 1B are also essential because they maintain habitat for the southernmost extent of the existing distribution of the Santa Ana sucker. Consequently, these units enhance the long-term sustainability of the sucker by maintaining its genetic adaptive potential and a well-distributed geographical range to buffer the sucker's particular vulnerability to environmental fluctuations and catastrophes because of its limited number of populations.

The San Gabriel River Unit consists of the West, North, and East Forks of the San Gabriel River and the following tributaries: Cattle Canyon Creek, Bear Creek, and Big Mermaids Canyon Creek. The San Gabriel River portion of the unit extends from the Cogswell Dam on the West Fork to the Bridge-of-No Return on the East Fork, and portions of the North Fork. Santa Ana sucker occupies the West, North, and East Forks of the San Gabriel River. Suckers occupy the West Fork from the Cogswell Dam to the San Gabriel Reservoir. The North Fork and East Fork are occupied by suckers upstream from the San Gabriel Reservoir. Suckers also occupy the following tributaries: Cattle Canyon Creek, Bear Creek, and Big Mermaids Canyon Creek.

Approximately 15 percent of the total remaining range of the listed Santa Ana sucker is in the San Gabriel River (65 FR 19686). Approximately 15 percent of its distribution in the San Gabriel River Basin occurs on private lands, and the remaining 85 percent occurs in the Angeles National Forest (65 FR 19686). This river has the least developed watershed of the three critical habitat units. Data gathered during sampling indicated that the San Gabriel River may contain the largest population of Santa Ana suckers (R. Ally, in litt. 1996; Mike Gusiti, CDFG, in litt. 1996; M. Wickman, in litt., 1996; Juan Hernandez, CDFG, in litt. 1997; M. Saiki, pers. comm. 1999).

The San Gabriel River Unit is essential to the conservation of the sucker because the San Gabriel River drainage system supports one of only three extant populations of this listed species which has a highly fragmented and limited distribution. In addition, the San Gabriel River Unit provides the best remaining habitat capable of sustaining the Santa Ana sucker. Moyle and Yoshiyama (1992) consider the population of suckers in the San Gabriel River drainage to be the only viable population of the Santa Ana sucker within the species' native range (65 FR 19686). This population is found in the relatively undisturbed watershed of the Angeles National Forest, unlike the population within the Santa Ana River which is within a highly urbanized watershed that receives urban and agricultural run-off and other environmental contaminants. Thus, this unit supports a population that occurs within a relatively intact watershed that provides good water quality and thereby, ensures the conservation of the only extant population of listed suckers that will likely avoid the potential for chronic exposure to water quality degraded by urban run-off or tertiary-treated wastewater discharges.

The Big Tujunga Creek Unit consists of the stretch of Big Tujunga Creek between the Big Tujunga Dam and Hansen Dam and the following tributaries: Stone Canyon Creek, Delta Canyon Creek, Gold Canyon Creek, and Little Tujunga Creek. The Santa Ana sucker occupies the Big Tujunga Creek between Big Tujunga Dam and Hansen Dam.

Approximately 25 percent of the total remaining range of the Santa Ana sucker is within the Big Tujunga Creek (65 FR 19686). In the Big Tujunga Creek, approximately 60 percent of the current range of the Santa Ana sucker occurs on private lands. The remaining 40 percent of the range occurs on Angeles National Forest lands managed by the U.S. Forest Service.

The Big Tujunga Creek Unit is essential to the conservation of the sucker because this stream segment supports one of only three extant populations of this listed species which has a highly fragmented and limited distribution. In addition, the upstream portion of this population is largely contained within the Angeles National Forest and therefore is not exposed to the effects of urban run-off and tertiary treated wastewater discharge. This unit is also essential because it maintains habitat for the northernmost extent of the existing distribution of the Santa Ana sucker. Consequently, the unit enhances the long-term sustainability of the sucker by maintaining its genetic adaptive potential and a well-distributed geographical range to buffer the sucker's particular vulnerability to environmental fluctuations and catastrophes.

The tributaries to the Big Tujunga Creek that are within the unit (Stone Canyon Creek, Delta Canyon Creek, Gold Canyon Creek, and Little Tujunga Creek) are not known to be occupied, but are essential to the conservation of the sucker because they provide and transport sediment necessary to maintain the preferred substrates utilized by this fish; convey stream flows and flood waters necessary to maintain habitat conditions for the Santa Ana sucker; and support riparian habitats that protect water quality in the occupied portions of the Big Tujunga Creek. Similar to the Santa Ana River, these tributaries are essential to the Big Tujunga Creek sucker population because it they provide renewal of spawning and feeding substrates and peaks and ebbs in water volumes. These tributaries are particularly essential to the conservation of the sucker since the Big Tujunga Dam has reduced the transfer of sediment downstream and altered the natural flow in the upper Big Tujunga Creek. The sucker has been able to maintain its population in the Big Tujunga Creek despite the fragmented habitat and presence of nonnative species. Most likely, the sucker population has survived because of the presence of the relatively undisturbed condition of the tributaries to Big Tujunga Creek.

Section 4(b)(2) of the Act allows the Secretary to exclude any area from critical habitat if she determines the benefits of such exclusion outweigh the benefits of specifying such area as part of critical habitat, unless, based on the best scientific and commercial data available, she determines that failure to designate the area as critical habitat will result in the extinction of the species. We have determined that the benefits of excluding essential habitat within the boundaries of the Western Riverside MSHCP and essential habitat within the area covered by SAS Conservation Program outweigh the benefits of including these areas as critical habitat. Exclusion of these areas will not result in the extinction of the sucker.

The Western Riverside MSHCP has been in development for several years. Participants in the Western Riverside MSHCP include 14 cities; the County of Riverside (including the Riverside County Flood Control and Water Conservation District, Riverside County Transportation Commission, Riverside County Parks and Open Space District, and Riverside County Waste Department); the California Department of Parks and Recreation; and the California Department of Transportation. The Western Riverside MSHCP is also being proposed as a subregional plan under the State's Natural Community Conservation Program (NCCP) and is being developed in cooperation with the California Department of Fish and Game. Within the 1.26 million-acre (510,000 ha) planning area of the Western Riverside MSHCP, approximately 153,000 ac (62,000 ha) of diverse habitats are proposed for conservation. The proposed conservation of 153,000 ac (62,000 ha) will complement other, existing natural and open space areas that are already conserved through other means ( e.g. , State Parks, Forest Service, and county park lands).

The County of Riverside and the participating jurisdictions have signaled their sustained support for the Western Riverside MSHCP as evidenced by the November 5, 2002, passage of a local bond measure to fund the acquisition of land in support of the MSHCP. On November 14, 2002, a notice of availability of a draft environmental impact report (EIS/EIR) and receipt of and application for an incidental take permit was accepted and published in the Federal Register . We accepted public comment on these documents until January 14, 2003. Subsequently, on June 17, 2003, the County of Riverside Board of Supervisors voted unanimously to support the completion of the Western Riverside MSHCP.

The Western Riverside MSHCP incorporates conservation actions within the planning area, such as implementing a nonnative species removal program, maintaining or improving water quality standards, and removing or modifying barriers to fish passage within the Santa Ana River to address the long-term conservation of the Santa Ana sucker. Although the Western Riverside MSHCP is not yet approved by the Service, significant progress has been achieved in the development of this HCP, including the preparation of the EIS/EIR, the solicitation of public review and comment, and the initiation of a consultation with us on the issuance of incidental take permits for those species identified for coverage in the draft plan.

The Santa Ana Sucker (SAS) Conservation Program is a multi-agency partnership of Federal, and local government agencies and the private sector that encourages a river-wide approach to conservation of the Santa Ana sucker within the Santa Ana River and its tributaries. This partnership also increases the knowledge base to implement recovery strategies for the sucker in the Santa Ana River; ensures that each participating agency minimizes, to the extent possible, effects from routine activities to the sucker; and develops restoration techniques for degraded habitat. Partners in the SAS Conservation Program include the Santa Ana Watershed Project Authority, the Army Corps of Engineers (Corps), the Fish and Wildlife Service, and the following participating agencies: Orange County Water District, Orange County Resources and Development Department, Riverside County Flood Control and Water Conservation District, Riverside County Transportation Department, City of Riverside Regional Water Quality Control Plant, San Bernardino County Flood Control District, and the City of San Bernardino Municipal Water Department Rapid Infiltration and Extraction Facility.

The partnership was initially formed in the spring of 1999, when an informal group of concerned local, regional, State, and Federal agencies formed the Ad-Hoc Santa Ana Sucker Discussion Team (Discussion Team) to assist in reconciling economic activities with the conservation of the sucker and to identify and implement conservation measures that would contribute to the survival and recovery of the sucker, primarily within the Santa Ana River watershed. Research priorities and funding sources were identified, and a three-phase, coordinated effort was initiated and completed during 1999 and 2000. These initial scientific studies concentrated on physiochemical variables, migration patterns, predatory fish relationships, and tributary analysis. As an outgrowth of these studies, the Discussion Team proposed the SAS Conservation Program, for an initial term of 5 years.

The purpose of the draft Programmatic Consultation on the SAS Conservation Program is to promote the conservation ( i.e. , survival and recovery) of the sucker, while providing the necessary authorization, pursuant to the ESA, to allow for the incidental take of a limited number of suckers that is anticipated to occur when the participating agencies implement their covered activities. Covered activities include operation, maintenance, repair, and reconstruction of ( e.g. , rebuilding existing levees for water conservation, constructed wetlands, and flood control) existing projects and facilities and the continuation of existing programs for flood control, water conservation, water treatment and discharge, protection of transportation routes, and wildlife conservation. Impact minimization measures for the Santa Ana sucker are integral to the SAS Conservation Program and are identified for each of the agencies' covered activities.

The SAS Conservation Program has funded research efforts to define habitat affinities for various life history stages of the sucker, investigate reproductive patterns of the sucker, develop a population trend database, examine aspects of sucker migration in the Santa Ana River, and examine effects on the sucker of temporary shutdowns of tertiary-treated wastewater discharge water to the Santa Ana River. Planned research projects of the SAS Conservation Program in 2004 include the development of habitat restoration methods, characterize the movement and diet of various life history stages of suckers, and investigate the effects of non-native adult fish on larval and juvenile suckers. Again, funding for all of these research efforts will be provided by the participating agencies.

We are excluding from critical habitat designation areas along the Santa Ana River because they are either within the planning area boundary for the draft Western Riverside MSHCP or the SAS Conservation Program. Our justification for excluding these areas is outlined below.

The benefits of designating critical habitat on lands within the boundaries of HCPs that cover the species for which critical habitat is being designated are small. HCPs generally include management measures and protections designed to protect, restore, monitor, manage, and enhance the habitat to benefit the conservation of the species. The draft Western Riverside MSHCP seeks to accomplish these goals for the Santa Ana sucker through the implementation of specific conservation measures. The principal benefit of designating critical habitat is that federally authorized or funded activities that may affect a species' critical habitat would require consultation with us under section 7 of the Act. Under section 7, proposed actions that would adversely modify or destroy designated critical habitat cannot go forward, unless they are altered to eliminate the adverse modification or destruction of critical habitat.

An important objective of the Western Riverside MSHCP is to implement measures, including monitoring and management, necessary to conserve important habitat for the Santa Ana sucker within the plan's boundaries. Thus, the purposes of the Western Riverside MSHCP are consistent with the purpose served by undergoing consultation under section 7 which is to ensure that critical habitat of the sucker is not adversely modified by a proposed Federal action. Because issuance of an incidental take permit (ITP) under section 10 is a Federal action, prior to approving the Western Riverside MSHCP we must complete an internal section 7 consultation for every species, including the Santa Ana sucker, proposed to be covered under the proposed plan and permit. The consultation will require us to analyze the impacts of the proposed ITP and HCP on the Santa Ana sucker and its essential habitat within the plan boundaries, whether or not that habitat has been officially designated as critical habitat. Therefore, including that portion of the Santa Ana River basin that is within the boundaries of the proposed Western Riverside MSHCP as critical habitat would provide little benefit to the Santa Ana sucker because the potential impacts to the species' essential habitat within the MSHCP area are already addressed under the plan and will be analyzed in our internal section 7 consultation on the proposed ITP.

The SAS Conservation Program includes measures to restore, monitor, and enhance habitat for the Santa Ana sucker in the Santa Ana River. Similar to the Western Riverside MSHCP, the SAS Conservation Program is specifically designed to benefit the sucker and its essential habitat within the Santa Ana River. The SAS Conservation Program is a comprehensive conservation program for the sucker that includes measures to minimize the impacts of routine water management activities on the sucker and restore degraded river habitat to improve the species' prospects for survival and recovery. Because the SAS Conservation Program is specifically designed to benefit the sucker and its essential habitat within the Santa Ana River habitat and the Programmatic Consultation on the SAS Conservation Program will analyze the effects of the SAS Conservation Program on the sucker and its habitat, the designation of critical habitat within the boundaries of the SAS Conservation Program would provide little or no additional benefits to this species.

Excluding from critical habitat lands within the Western Riverside MSHCP or within the area covered by the SAS Conservation Program will provide several benefits. Exclusion of the lands from the final designation will allow us to continue working with the participants in a spirit of cooperation and partnership. In the past, HCP applicants and participants in voluntary conservation programs have generally viewed the designation of critical habitat as having a potential negative regulatory effect that discourages voluntary, cooperative and proactive efforts to conserve listed species and their habitats by non-Federal parties. They generally view designation of critical habitat as an indication by the Federal government that their proactive actions to protect the species and its habitat are inadequate. Excluding these areas from the perceived negative consequences of critical habitat, will likely encourage other jurisdictions, private landowners, and other entities to work cooperatively with us to develop HCPs and conservation plans, which will provide the basis for future opportunities to conserve species and their essential habitat.

We have reviewed and evaluated the nearly finished draft Western Riverside MSHCP and SAS Conservation Program and find that the benefits of exclusion outweigh the benefits of designating the areas covered by the MSHCP and SAS Conservation Program as critical habitat.

The exclusion of these areas from critical habitat will help preserve the partnerships that we have developed with the local jurisdictions and agencies in the development of the draft Western Riverside MSHCP and SAS Conservation Program. The only potential benefit of designating critical habitat within these areas would be educational: informing the public of areas that are essential for the long-term survival and conservation of the species. However, this information has already largely been provided to the public through the material provided on our Web site and through the ample opportunity for public participation provided throughout the development of the Western Riverside MSHCP. The Corps of Engineers is also likely to issue a public notice and solicit public comment on the issuance of a permit for activities related to the maintenance and operation of existing water facilities on the Santa Ana River in association with the SAS Conservation Program further increasing the public's knowledge of the importance of the Santa Ana River to the sucker. For these reasons, we believe that designating critical habitat has little benefit in areas covered by the draft Western Riverside MSHCP and SAS Conservation Program. Exclusion of these areas will not result in the extinction of the species because the Western Riverside MSHCP and SAS Conservation Program are designed to ensure that activities authorized within these areas include measures to protect the Santa Ana Sucker and its habitat.

Based on our evaluation of our past consultation history on the Santa Ana Sucker and the analysis conducted for those consultations, the Western Riverside MSHCP, and the SAS Conservation Program, we believe that we have a general understanding of potential impacts, including those related to economics, of this designation. We have considered these potential impacts in the development of this designation and do not believe, at this time, that additional exclusion, including those based on economics, pursuant to section 4(b)(2) of the Act are warranted.

We listed as threatened only those Santa Ana sucker populations thought to occur within the native range of the species. The native range of the Santa Ana sucker is considered to be the streams of the Los Angeles, San Gabriel, and Santa Ana River basins. The Santa Clara River population is presumed to be an introduced population, although this presumption is based entirely on negative data, and not on a documented record of introduction (Hubbs et al. 1943, Miller 1968, Moyle 1976, Bell 1978). The Santa Clara population was not listed; thus critical habitat cannot be designated for this population. As we stated in the final listing rule, we will further evaluate the role of the Santa Clara River population in the recovery of the species. If the Santa Clara River population is determined to be crucial to the recovery of the species, we may re-evaluate the status of this population, threats to its conservation, and the status of the population under the Act.

The regulatory effects of a critical habitat designation under the Act are triggered through the provisions of section 7, which applies only to activities conducted, authorized, or funded by a Federal agency (Federal actions). Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Individuals, organizations, States, local governments, and other non-Federal entities are not affected by the designation of critical habitat unless their actions occur on Federal lands, require Federal authorization, or involve Federal funding.

Section 7(a)(2) of the Act requires Federal agencies, including us, to ensure that their actions are not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of designated critical habitat. This requirement is met through section 7 consultation under the Act. Our regulations define “jeopardize the continued existence” as to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species (50 CFR 402.02). “Destruction or adverse modification of designated critical habitat” is defined as a direct or indirect alteration that appreciably diminishes the value of the critical habitat for both the survival and recovery of the species (50 CFR 402.02). Such alterations include, but are not limited to, adverse changes to the physical or biological features, i.e. , the primary constituent elements, that were the basis for determining the habitat to be critical. However, in a March 15, 2001, decision of the United States Court of Appeals for the Fifth Circuit ( Sierra Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434), the Court found our definition of destruction or adverse modification to be invalid. In response to this decision, we are reviewing the regulatory definition of adverse modification in relation to the conservation of the species.

Section 7(a)(4) requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of proposed critical habitat. Conference reports provide conservation recommendations to assist the agency in eliminating conflicts that may be caused by the proposed action. The conservation recommendations in a conference report are advisory.

We may issue a formal conference report, if requested by the Federal action agency. Formal conference reports include an opinion that is prepared according to 50 CFR 402.14, as if critical habitat were designated. We may adopt the formal conference report as the biological opinion when critical habitat is designated, if no substantial new information or changes in the action alter the content of the opinion ( see 50 CFR 402.10(d)).

If a species is listed or critical habitat is designated, section 7(a)(2) requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Through this consultation, the action agency would ensure that the permitted actions do not destroy or adversely modify critical habitat.

If we issue a biological opinion concluding that a project is likely to result in the destruction or adverse modification of critical habitat, we would also provide reasonable and prudent alternatives to the project, if any are identifiable. Reasonable and prudent alternatives are defined at 50 CFR 402.02 as alternative actions identified during consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that the Service's Regional Director believes would avoid the destruction or adverse modification of critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where critical habitat is subsequently designated and the Federal agency has retained discretionary involvement or control over the action or such discretionary involvement or control is authorized by law. Consequently, some Federal agencies may request reinitiation of consultation or conference with us on actions for which formal consultation has been completed, if those actions may affect designated critical habitat or adversely modify or destroy proposed critical habitat.

Federal activities that may affect the Santa Ana sucker and designated critical habitat will require consultation under section 7. On private, State, or county lands, or lands under local jurisdictions, activities requiring a permit from a Federal agency, such as Federal Highway Administration or Federal Emergency Management Act funding, or a permit from the Corps under section 404 of the Clean Water Act, will continue to be subject to the section 7 consultation process. Federal actions not affecting listed species or critical habitat, and actions on non-Federal lands that are not federally funded, authorized, or permitted do not require section 7 consultation.

Section 4(b)(8) of the Act requires us to evaluate briefly and describe, in any proposed or final regulation that designates critical habitat, those activities involving a Federal action that may adversely modify such habitat or that may be affected by such designation. We note that such activities may also jeopardize the continued existence of the species. Activities that, when carried out, funded, or authorized by a Federal agency may affect or destroy or adversely modify critical habitat for Santa Ana sucker include, but are not limited to:

(1) Any activity, including the regulation of activities by the Corps of Engineers under section 404 of the Clean Water Act or activities carried out by or licensed by the Environmental Protection Agency (EPA), that could alter the watershed, water quality, and natural hydrologic function to an extent that water quality and/or water quantity becomes unsuitable to support the Santa Ana sucker within designated critical habitat;

(2) Roads, highways, and rights-of-way construction and maintenance or any activity funded or carried out by the Department of Transportation or other Federal agencies that results in discharge of dredged or fill material or excavation within designated critical habitat; or

(3) Activities regulated by the Corps, EPA, or Natural Resources Conservation Service under the Clean Water Act and other acts or regulations, including but not limited to, discharge of fill into waters of the United States and promulgation of water quality standards within designated critical habitat;

(4) Sale or exchange of Federal lands by a Federal agency to a non-Federal entity within designated critical habitat;

(5) Construction, licensing, re-licensing, and operation of dams or other water impoundments by the Bureau of Reclamation (BOR), Corps, or Federal Energy Regulatory Commission (FERC) within designated critical habitat;

(6) Licensing of construction of communication sites by the Federal Communications Commission;

(7) Funding of construction or development activities by the U.S. Department of Housing and Urban Development; and

(8) Promulgation and implementation of a land use plan by a Federal agency such as the U.S. Forest Service that may alter management practices for critical habitat.

If you have questions regarding whether specific activities may constitute adverse modification of critical habitat in California, contact the Field Supervisor, Carlsbad Fish and Wildlife Office (see ADDRESSES section). Requests for copies of the regulations on listed plants and wildlife, and inquiries about prohibitions and permits may be addressed to the U.S. Fish and Wildlife Service, Branch of Endangered Species, 911 NE. 11th Ave, Portland, OR 97232 (telephone 503/231-2063; facsimile 503/231-6243).

The Office of Management and Budget (OMB) has not reviewed this final critical habitat designation in accordance with Executive Order 12866. In order to comply with the critical habitat designation deadline established by the district court, there was insufficient time for OMB to formally review this proposal.

The Service is not required to comply with the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) when promulgating a final rule under the good cause exemption of the Administrative Procedure Act (APA). RFA section 3 requires the preparation of an initial regulatory flexibility analysis (IRFA) “whenever an agency is required by section 553 of this title, or any other law, to publish general notice of proposed rulemaking for any proposed rule * * *” (5 U.S.C. 603(a)). RFA section 4 requires agencies to conduct a final regulatory flexibility analysis (FRFA) with each final rule, but only when “an agency promulgates a final rule under section 553 of this title, after being required by that section or any other law to publish a general notice of proposed rulemaking * * *” (5 U.S.C. 604(a)). Therefore, for a critical habitat final rulemaking conducted under the APA's 553(b)(B) good cause exemption, the RFA does not require the Service to create an IFRA or a FRFA and contains no other provisions requiring compliance in such situations. The certification procedures in RFA section 5 are not relevant because they are only triggered if an IRFA or FRFA is otherwise required.

Under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et seq. ), this rule is not a major rule. As previously discussed, we have excluded critical habitat from private lands within the draft Western Riverside MSHCP and the SAS Conservation Program under section 4(b)(2) of the Act. The exclusion of these private lands and the activities associated with the draft Western Riverside MSHCP and SAS Conservation Program eliminates the potential for critical habitat in these excluded areas to have any effect on the increase in cost or prices for consumers or any significant adverse effects on competition, employment, investment, productivity, innovation or the ability of U.S.-based enterprises to compete with foreign-based enterprises. Moreover, approximately 48 percent of the designated critical habitat is on Forest Service lands that are not intensively used for commercial or business purposes and we anticipate that the designation will have little to no effect on cost or prices for consumers or any other significant commercial or business related activities. The remaining 52 percent of designated critical habitat that occurs on private lands is constrained by other existing conditions, such as being within wetlands regulated by the U.S. Army Corps of Engineers, floodplains identified by FEMA, or by the presence of listed species or other designated critical habitat. Therefore, we believe that this critical habitat designation will not have an effect on the economy of $100 million or more, will not cause a major increase in costs or prices for consumers, and will 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.

On May 18, 2001, the President issued Executive Order 13211, on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not a significant regulatory action under Executive Order 12866, and is not expected to significantly affect energy production supply and distribution facilities because no energy production, supply, and distribution facilities are included within designated critical habitat. Further, we do not believe the designation of critical habitat for the Santa Ana sucker will affect future energy production. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ):

(a) This rule will not produce a Federal mandate on State or local governments or the private sector of $100 million or greater in any year, that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no direct obligations on State or local governments.

(b) This rule will not “significantly or uniquely” affect small governments so a Small Government Agency Plan is not required. Small governments will not be affected unless they propose an action requiring Federal funds, permits, or other authorizations. Any such activities will require that the Federal agency ensure that the action will not adversely modify or destroy designated critical habitat.

In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of designating critical habitat for the Santa Ana sucker in a takings implications assessment. The takings implications assessment concludes that this final designation of critical habitat for the Santa Ana sucker does not pose significant takings implications.

In accordance with Executive Order 13132, this final rule does not have federalism implications or impose substantial direct compliance costs on State and local governments. This designation requires Federal agencies to ensure that their actions do not adversely modify critical habitat; it does not impose direct obligations on State or local governments. A federalism assessment is not required.

The designations may have some benefit to the State of California and local government, in that the areas essential to the conservation of the Santa Ana sucker are more clearly defined, and the primary constituent elements of the habitat necessary to their survival are specifically identified. While this definition and identification do not alter where and what federally sponsored activities may occur, they may assist these local governments in long-range planning, rather than causing them to wait for case-by-case section 7 consultation to occur.

In accordance with Executive Order 12988, the Department of the Interior's Office of the Solicitor has determined that this rule does not unduly burden the judicial system and does meet the requirements of sections 3(a) and 3(b)(2) of the Order. We have designated critical habitat in accordance with the provisions of the Endangered Species Act. The rule uses standard property descriptions and identifies the primary constituent elements within the designated areas to assist the public in understanding the habitat needs of the Santa Ana sucker.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951, E.O. 13175, and the Department of the Interior's manual at 512 DM 2, we have evaluated the potential effects on federally recognized Indian tribes and have determined that there are no potential effects.

This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act. This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

We do not need to prepare an Environmental Assessment and/or an Environmental Impact Statement as defined by the National Environmental Policy Act of 1969 in connection with regulations adopted pursuant to section 4(a) of the Act. We published a notice outlining our reason for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This rule does not constitute a major Federal action significantly affecting the quality of the human environment.

A complete list of all references cited in this rulemaking is available upon request from the Field Supervisor, Carlsbad Fish and Wildlife Office (see ADDRESSES section).

The primary author of this document is the Carlsbad Fish and Wildlife Office (see ADDRESSES section).

The proposed rule also is accessible via the Internet at the Office of the Federal Register 's website at http://www/gpoaccess/gpv/fr/index.html . Background information and documents are available at the NMFS Northwest Region website at http://www/nwr.noaa.gov/1sustfsh/gdfsh/gdfsh01.htm and at the Council's website at http://www.pcouncil.org .

A Notice of Availability for Amendment 16-1 to the FMP was published on August 18, 2003 (68 FR 49415). NMFS requested comments on the amendment under the Magnuson-Stevens Act FMP amendment review provisions for a 60-day comment period, ending October 17, 2003. A proposed rule to implement Amendment 16-1 was published on September 5, 2003 (68 FR 52732). NMFS requested comment on the proposed rule through October 6, 2003. During the comment periods on the amendment and proposed rule, NMFS received four letters of comment, which are addressed later in the preamble to this final rule. The preamble to the proposed rule for this action provides additional background on the fishery and on this rule. Further detail on Amendment 16-1 also appears in the EA/RIR/IRFA prepared by the Pacific Fishery Management Council (Council) for this action.

NMFS approved Amendment 16-1 on November 14, 2003. Amendment 16-1 requires that Pacific Coast groundfish overfished species rebuilding plans be added into the FMP via FMP amendment, and then implemented through Federal regulations. For each approved overfished species rebuilding plan, the following parameters will be specified in the FMP: estimates of unfished biomass (B 0 ) and target biomass (B MSY , the year the stock would be rebuilt in the absence of fishing (T MIN ), the year the stock would be rebuilt if the maximum time period permissible under national standard guidelines were applied (T MAX ), the estimated probability that the stock would be rebuilt by this date under the adopted rebuilding plan based on the application of stock rebuilding measures, the year in which the stock would be rebuilt under the adopted rebuilding plan based on the application of stock rebuilding measures (T TARGET ), and a harvest control rule. These estimated values will serve as management benchmarks in the FMP. The FMP will not be amended if, as is likely to happen, the values for these parameters change as a result of new stock assessments. Other relevant information listed in Amendment 16-1 will also be included in the FMP.

The two rebuilding parameters that control the establishment of the annual or biennial optimum yield (OY) of each overfished species will be codified in the Code of Federal Regulations (CFR): the target year for rebuilding and the harvest control rule to be used to rebuild the stock. If, after a new stock assessment, the Council and NMFS conclude that these should be revised, the revision will be done through a rulemaking, and the updated values codified in the CFR.

In addition to specifying how rebuilding plans and their parameters will be handled in the FMP and in Federal regulations, Amendment 16-1 will: set schedules and standards for reviewing rebuilding plans; specify that the rebuilding plan for each species will set a species-specific standard for determining the adequacy of rebuilding progress for the particular species toward that goal; give Endangered Species Act (ESA) jeopardy standards and/or recovery plans precedence over rebuilding plans if they establish higher recovery standards than those already set in the rebuilding plans, and; make minor housekeeping amendments to the FMP text, such as correcting mis-spelled species names, revising definitions to better comport with the national standard guidelines, revising the Stock Assessment and Fishery Evaluation report schedule, clarifying that the Federal observer program is mandatory, and reorganizing outdated sections of the FMP.

NMFS received four letters of comment on the proposed rule to implement Amendment 16-1: two letters were received from environmental advocacy organizations, one letter was received from the U.S. Department of the Interior, and one letter was received from the U.S. Coast Guard. Their comments are addressed here:

Comment 1 : We recommend that the FMP specify for each overfished species a virgin biomass (B 0 or B UNFISHED )that is the product of that stock's spawning potential ratio in an unfished state and the average recruitment during the early years of the fishery, or the standard used by NMFS for stock assessments. We also recommend that this value be specified in Federal regulations.

Response : According to the Council's Scientific and Statistical Committee's (SSC's) Terms of Reference for Groundfish Rebuilding Analyses (April 2001), analysts typically estimate B 0 values by reviewing recruitment from a sequence of years in which recruitment is believed to be reasonably representative of that of an unfished stock. This practice typically translates into a reliance on stock size estimates from the earliest years for which recruitment information is available. Incorporating new data on stock size and recruitment levels into a stock assessment would likely result in the revision of B 0 for that species. For example, the June 2002 canary rockfish rebuilding analysis completed for Amendment 16-2 revised an earlier estimate of B 0 by incorporating older historical information (back to 1940) on canary rockfish recruitment. Both the canary rockfish and darkblotched rockfish B 0 values provided in Amendment 16-2 were calculated in the manner suggested by the commenter.

For Pacific ocean perch (POP), assessment authors reviewed this traditional approach and modified it somewhat because POP recruitment is highly variable and recruitment levels in the earlier years of the POP assessment period were unusually high. Assessment authors found that recruitment values earlier than and later than the assessment period were substantially smaller than the values for the years at the start of the assessment period. For lingcod, which tends to have more constant recruitment rates than rockfish species, stock assessment authors looked at recruitment rates for the entire time series available for lingcod (1973-1995).

In raising this issue, the commenter addresses a basic conundrum in fish stock assessment. West Coast fisheries and atmospheric scientists acknowledge that West Coast waters experience periodic warming and cooling cycles that seem to affect recruitment success for some West Coast species. If the earliest data available on a particular stock were from years when ocean conditions for that stock's recruitment levels were good, an assessment author could use those data and overestimate the long-term average size of B 0 . In this circumstance the earlier B 0 could not be maintained by the stock under the subsequent poorer ocean conditions, even in the absence of fishing. Conversely, if the ocean conditions were not favorable to recruitment during the early years of a particular stock's assessment period, an assessment author could use those data and underestimate the size of B 0 . These possibilities are particularly evident for rockfish, which seem to have highly variable rates of recruitment. Thus, while NMFS recognizes that the commenter's B 0 estimation method has merit and should be considered in the development of rebuilding analyses, the agency continues to support the SSC's recommendations that the determination of B0 be attuned to the behavior of and information about each particular stock being assessed.

For each overfished species, NMFS intends to include only the target year for rebuilding (T TARGET ) and the harvest control rule in Federal regulations because these parameters would control the establishment of OY for these species. Other rebuilding parameters such as B 0 will be included in the FMP.

Comment 2 : The commenter recommended that the FMP specify for each overfished species a proxy for biomass at MSY (B MSY ) that is forty percent of B UNFISHED . The commenter also recommended that this value be specified in Federal regulations.

Response : The FMP, as amended by Amendment 16-1, specifies in its definition of “MSY stock size” that the proxy for B MSY “typically used in this fishery management plan is 40 percent of the estimated unfished biomass, although other values based on the best scientific information are also authorized.” This proxy is again specified in the FMP at Section 4.4.1, which establishes a B MSY precautionary threshold for stocks that have received quantitative assessments. Species with stock sizes below their B MSY are to be managed at more precautionary harvest levels. Section 4.4.1 reads in part, “The default precautionary threshold will be 40 percent of the estimated unfished biomass level. The Council may recommend different precautionary thresholds for any species or species group based on the best scientific information about that species or species group. It is expected that the threshold will be between 25 percent and 50 percent of the estimated unfished biomass level.”

The B MSY levels set for each of the four overfished species in Amendment 16-2 are set at B 40 . As the FMP makes clear, B 40 is the default B MSY proxy for all stocks that have received quantitative assessments, including overfished species. However, the FMP is also clear in stating that B MSY for a particular stock may be modified from B 40 if the best available scientific information on that stock warrants the revision.

For each overfished species, NMFS intends to include only the target year for rebuilding (T TARGET ) and the harvest control rule in Federal regulations because these parameters would control the establishment of OY for these species. Other rebuilding parameters such as B 0 will be included in the FMP.

Comment 3 : The commenter recommended that the FMP specify a target time for rebuilding (T TARGET ) that is the midpoint between the minimum time for rebuilding (T MIN ) and the maximum time for rebuilding (T MAX ). The commenter also recommended that this value be specified in Federal regulations.

Response : According to the national standard guidelines at 50 CFR 600.310(e)(4)(ii)(B)( 3 ), if T MIN is 10 years or greater, “then the specified time period for rebuilding [T TARGET ] may be adjusted upward to the extent warranted by the needs of fishing communities and recommendations by international organizations in which the United States participates, except that no such upward adjustment can exceed the rebuilding period calculated in the absence of fishing mortality, plus one mean generation time or equivalent period based on the species' life-history characteristics [T MAX ].”

The Council has not recommended for the 16-2 species a T TARGET value that exceeds T MAX . For some species, it would be appropriate to set a T TARGET that is the midpoint between T MIN and T MAX . Amendment 16-2, for example, includes Council-preferred alternatives for darkblotched rockfish and POP T TARGET levels that are set at the midpoints between their respective T MIN and T MAX levels. However, there are cases where the needs of fishing communities or recommendations of international organizations may result in the setting of a T TARGET year that is different from the midpoint between the minimum time for rebuilding and the maximum time for rebuilding.

Many of the overfished groundfish stocks tend to be thoroughly mixed with other, more abundant stocks. Historically, NMFS and the Council have interpreted the needs of the fishing communities to primarily include the need to have some fishing occurring for those more abundant stocks. Some overfished species, such as canary rockfish, co-occur with more abundant fish stocks to such a great degree that setting a T TARGET year at the midpoint between the minimum time for rebuilding and the maximum time for rebuilding would result in the closure of one or more fishing sectors, resulting in severe impacts on participants in these fisheries.

Canary rockfish rebuilding parameters in Amendment 16-2 provide an example of the effects of managing to different T TARGET years in a multi-species fishery. The Council's preferred alternative is a canary rockfish T TARGET of 2074, with a T MIN of 2057 and a T MAX of 2076. The Amendment 16-2 Draft Environmental Impact Statement (DEIS) analyzes canary rockfish rebuilding for a range of alternatives that include maximum conservation by managing to T MIN and maximum harvest by managing to T MAX . At T MIN , no directed or incidental take of canary rockfish would be permitted (Table 2.0-1, 16-2 DEIS). Table 3.1-1 of the DEIS shows the known latitudinal and depth distributions of FMP groundfish, with canary rockfish listed as a coastwide stock with a depth distribution of 50-150 fm (91-274 m). To fully avoid canary rockfish, recreational fisheries for groundfish would have to close entirely because of their canary rockfish interceptions. A broad range of commercial fisheries ranging from groundfish trawl to halibut longline would similarly need to be closed in order to avoid canary rockfish altogether (Table 4.4-11, 16-2 DEIS). Even at the Council's preferred T TARGET of 2074, management measures to protect canary rockfish in 2004 include: a Rockfish Conservation Area (RCA) in which groundfish bottom trawling is prohibited between the 75 fm (137 m) and 200 fm (366 m) depths, trawl footrope gear restrictions to make trawl gear less effective in canary rockfish habitat, an RCA in which fishing for groundfish with non-trawl gear is prohibited between the 30-fm (55-m) and 100-fm (183-m) depths, state-management requirements that shrimp and prawn trawlers carry finfish excluder devices, and prohibiting canary rockfish retention in the recreational fisheries coastwide. In summary, due to socioeconomic considerations and the constraints on fishing communities associated with rebuilding measures for overfished species, the agency does not expect to set a single T TARGET guideline for all species that would be the midpoint between T MIN and T MAX . While the Technical Guidance on the Use of the Precautionary Approaches to Implementing National Standard 1 of the Magnuson-Stevens Fishery Conservation and Management Act (Technical Guidance) at page 38 suggests that T TARGET be set no higher than the midpoint between T MIN and T MAX , adopting that as a binding criterion in all cases would not be consistent with the Magnuson-Stevens Act. It would not be consistent with the Magnuson-Stevens Act because it would not allow the criteria in the Act at section 304(e)(4) and the national standard guidelines at 600.310(e)(4)(ii) to be taken into account. The Technical Guidance is not a binding regulation that must be followed. The Technical Guidance itself acknowledges that it deals with biological issues, and not with socioeconomic issues, which fishery management councils must consider, per the Magnuson-Stevens Act (Technical Guidance at 1, 28).

NMFS intends to include a value for T TARGET for each overfished species in Federal regulations at 50 CFR 660.370, as shown in the proposed rule to implement Amendment 16-2 (December 5, 2003, 68 FR 67998.)

Comment 4 : We recommend that the FMP specify a T MAX that is associated with a ninety percent probability (P 90% ) of rebuilding to B MSY for those species with a stock assessment containing uncertainty and with an eighty percent probability (P 80% ) of rebuilding to B MSY for those species with stock assessments containing no uncertainty. This rebuilding time would serve as an outer bound for rebuilding analyses.

Response : The definition for T MAX was provided above in the response to Comment 3 and is repeated here, in part: “the specified time period for rebuilding [T TARGET ] may be adjusted upward . . . except that no such upward adjustment can exceed the rebuilding period calculated in the absence of fishing mortality, plus one mean generation time or equivalent period based on the species' life-history characteristics [T MAX ]” (600.310(e)(4)(ii)(B)( 3 )). Thus, T MAX is an outer boundary for the rebuilding time that is defined by a stock's recruitment in the absence of fishing and by the stock's mean generation time. The probability of rebuilding to B MSY by T MAX is a function of the fishing mortality rate, not the calculated T MAX ; the fishing mortality rate also determines T TARGET . In order to ensure that it had illustrated the range of effects on the environment of different rebuilding probabilities for the Amendment 16-2 species, the Amendment 16-2 Environmental Impact Statement (EIS) includes a “maximum conservation” alternative, in which the fishing mortality rate is set to 0, T TARGET is equal to T MIN , and the probability of rebuilding to B MSY within T MAX equals or approaches 100 percent.

The commenter also differentiates between those stock assessments that contain uncertainty and those that do not contain uncertainty. Stock assessments are mathematical descriptions of what the data on a particular stock lead us to believe about the relative health and status of that stock. “Uncertainty” is a measure of the range around the best scientific estimates that come from the stock assessment. Uncertainty is not a lack of knowledge. Results that are close to the assessment's best estimate are likely to be close to the true situation, and other results are possible but unlikely. There are several factors that contribute to uncertainty in the stock assessment, including variability in the catch and survey data that go into the model, incompletely known factors about the biology of the fish, necessary simplifications in the assessment model itself, and changes in the actual productivity of the fish stock. Continued research helps us reduce each of these sources of uncertainty. However, given current research technology, it is unlikely that a stock assessment scientist working on wild fish stocks will have the opportunity to conduct a stock assessment with no uncertainty. Explaining this disconnect between a mathematician's definition of “uncertainty” and the public belief that “uncertainty” means “lack of knowledge” is a regular communication challenge for stock assessment scientists.

To the extent that the comment is intended to advocate a consistently conservative approach to establishing rebuilding parameters, the agency does employ a precautionary approach. However, as explained in the response to Comment 3, above, the Magnuson-Stevens Act and the national standard guidelines require that the Council and NMFS create overfished species rebuilding programs that both rebuild overfished species within T MAX and minimize the adverse economic impacts of such programs on fishing communities.

Comment 5 : The EA states that the methods of calculating the rebuilding parameters T MAX and T MIN are set at a national level. What is the relationship between the Magnuson-Stevens Act's national standards and the national standard guidelines?

Response : At Section 301(a), the Magnuson-Stevens Act sets 10 national standards for fishery management. These standards were created, amended, and updated through the series of legislative actions that created and have since amended the law first known as the 1976 Fishery Conservation and Management Act and now known as the Magnuson-Stevens Act. Section 301(b) directs the Secretary of Commerce to “establish advisory guidelines (which shall not have the force and effect of law), based on the national standards, to assist in the development of fishery management plans.” This authority under the Magnuson-Stevens Act has been delegated to NMFS. NMFS has had national standard guidelines in effect for many years. The Magnuson-Stevens Act was amended in 1996 by the Sustainable Fisheries Act, which strengthened the overfishing prohibitions of the Magnuson Act and enacted the rebuilding provisions under which NMFS currently operates. After two public comment periods on a proposed rule, NMFS promulgated the final rule implementing the current national standard guidelines on May 1, 1998 (63 FR 24212). Those guidelines provide an interpretation of the national standards and are codified in Federal regulations at 50 CFR 600.310 through 600.355. The specific sections that relate to T MIN and T MAX are found in 50 CFR 600.310(e)(4)(ii)(A) and (B). These national standard guidelines apply to all fisheries, nation-wide, that are managed under the aegis of the Magnuson-Stevens Act.

Comment 6 : For those rebuilding plan parameters that are to be specified in Federal regulations, we recommend full notice and comment rulemaking when these specific numeric criteria are changed via a stock assessment or other similar process.

Response : As discussed earlier in the responses to several comments, above, NMFS plans to codify for each overfished species a value for T TARGET and a harvest control rule in Federal regulations at 50 CFR 660.370. Any future revisions to these parameters would be made via notice-and-comment rulemaking. Because NMFS expects that revisions to rebuilding parameters would occur as a result of a change in a stock assessment for an overfished species, the notice-and-comment rulemaking for revisions to rebuilding parameters would generally occur simultaneously with a notice-and-comment rulemaking on harvest specifications and management measures.

Comment 7 : We urge NMFS to ensure that the groundfish FMP establish OY levels for groundfish species consistent with the Magnuson-Stevens Act and NMFS Technical Guidance. National standard 1 of the Magnuson-Stevens Act requires that “conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States Fishing Industry” (16 U.S.C. 1851(a)(1)). For species that are not overfished, the Council and NMFS must ensure that management measures are aimed at achieving an OY value, by reducing harvest levels such that OYs are below the MSY level. For species that are overfished, the OY and management measures should be designed to achieve rebuilding goals. Further, NMFS should ensure that the FMP consider proxies for OY in the case of data poor situations. We urge consideration of proxies found in the Technical Guidance for these species in the 2004 specifications environmental impact statement.

Response : FMP policies on the setting of ABCs and OYs are generally consistent with national standard 1 and with the Technical Guidance to implement the biological aspects of national standard 1. The Council addressed Magnuson-Stevens Act guidance on setting acceptable biological catch (ABCs) and OYs with its 1998 Amendment 11 to the FMP. The FMP at Section 4.3 identifies three categories of stocks: Category 1 is stocks with quantitative assessments, Category 2 is stocks with nonquantitative assessments, and Category 3 is stocks for which there is not enough information to set ABC values.

Category 1 Stocks : Under the FMP at Section 4.3, ABCs for Category 1 species are to be set at the MSY harvest level. The ABC for a species or species group is generally derived by multiplying the harvest rate proxy by the current estimated biomass. In 2001, the Council's SSC conducted a harvest rate workshop that resulted in the Council developing new default harvest rate proxies. These harvest rate proxies have been in use since the 2002 fishing year: F 40% for flatfish, F 50% for rockfish (including thornyheads), and F 45% for other groundfish such as sablefish and lingcod. A rate of F 40% can be explained as that which reduces spawning potential per female to 40 percent of what it would have been under natural conditions (if there were no mortality due to fishing), and is, therefore, a more aggressive rate than F 45% or F 50% .

The OY for each species or species group is set according to a series of rules that vary depending upon the relative abundance of the stock and upon the quantity and quality of scientific assessment on the stock. For stocks with stock assessments that indicate those stocks are above B MSY , harvest specifications may be set such that OY = ABC, unless reductions in available harvest need to be made to account for: high degree of uncertainty about the biomass estimate and other parameters, anticipated bycatch mortality of that species, past OY levels resulted in overfishing occurring on that species, or international fishery management agreements regarding that species (FMP at 4.6.1). Regardless of where the OY is set for a stock above B MSY , the fisheries will likely not be permitted to achieve that OY if that species co-occurs with an overfished species and fishing the more abundant stock must be constrained to protect the overfished stock.

Those stocks with stock assessments that indicate a population level between B 40% and B 25% are considered to be in a “precautionary zone.” Under the FMP at Section 4.5.1 and 4.6.1, OYs for stocks in the precautionary zone will generally be reduced from ABC on a scale known as the “40-10” policy, demonstrated by the following figure:

As is shown in this figure, harvest level parameters for stocks in the precautionary zone are increasingly conservative as they are applied to stocks of lower abundance within the precautionary zone. NMFS and the Council have applied the 40-10 policy to stocks with biomasses estimated to be within the precautionary zone since Amendment 11 was implemented in 1999. These stocks in the precautionary zone are proposed to be managed at harvest levels reduced from OY by the 40-10 policy in 2004: sablefish, Dover sole, and shortspine thornyhead. The 40-10 policy is more precautionary than the Technical Guidance's recommendations for stocks below B MSY . The Technical Guidance does not recommend reducing fishing mortality below F MSY until the stock is at 75 percent of B MSY (Technical Guidance at 35-37).

Stocks with stock assessments that indicate the biomass is below B 25% are considered overfished. Overfished species OYS are not set with a universally applicable policy. Each species' OY is set by a harvest rate intended to achieve the rebuilding goals for that species. Amendment 16-1 and its companion amendments, (16-2, 16-3, and 16-4) further develop harvest conservation principles explored in the FMP through Amendment 11. As discussed earlier in this document, Amendment 16-1 sets a process for and standards by which overfished species rebuilding plans will be developed. Amendment 16-2 (available for public comment on November 7, 2003, 68 FR 63053), Amendment 16-3 (under Council development), and Amendment 16-4 (to follow the 2004 whiting stock assessment) will establish rules by which OYS for each of the nine overfished species will be set under their respective rebuilding plans.

Category 2 Stocks : For stocks with nonquantitative stock assessments, the ABC is generally set based on the average of historic landings levels (FMP at 4.3.2). The FMP recognizes that an ABC based on average historical landings cannot be the upper harvest level for a species if historical landings have been unsustainable. Section 4.6.2 of the FMP governs the setting of OYS for Category 2 species. Under the OY policy for Category 2 species, precautionary downward adjustments are made to the OY from the ABC if there is a perception that the stock is below its MSY or if there is a high degree of uncertainty about the condition of the stock. This guidance is carried out through more specific Council policies for setting annual harvest values. ABC values are first calculated from average historic landings levels and then set by reducing the resultant average by 25 percent. Thus, an ABC for a Category 2 species is set at 75 percent of its average historic landings level. OY levels for Category 2 species are further reduced from their ABCs by 2 percent if they are species with less rigorous stock assessment, or by 50 percent if they are species with nonquantitative stock assessments. Thus an OY for a Category 2 species with a less rigorous stock assessment is set by multiplying the historic average landings level by 0.75, and then by multiplying that result by 0.75, ultimately resulting in an OY that is 56.25 percent of the historic average landings level. An OY for a Category 2 species with a nonquantitative assessment is set by multiplying the historic average landings level by 0.75, and then by multiplying that result by 0.5, ultimately resulting in an OY that is 37.5 percent of the historic average landings level. These policies, which were recommended by the Council's SSC, are consistent with but more precautionary than those described in the Technical Guidance for creating proxies in data poor situations. To see these policies in practice, refer to Table 1 in the 2004 specifications and management measures (69 FR 1380, January 8, 2004), footnotes for minor rockfish.

Category 3 Species : When the Council first developed the groundfish FMP in the early 1980's, it swept a wide variety of species under the authority of the groundfish FMP. At the time, West Coast salmon fisheries were of paramount importance, thus the groundfish FMP served as the management vehicle for many species other than salmon. There is generally little known about Category 3 species, perhaps because they have historically low catch rates or abundance relative to other more widespread stocks, or because they are not vulnerable to survey sampling gear. These species may not appear on fish tickets because they are not taken in the fisheries or because they are not commercially desirable. If a fishery were to develop for a Category 3 species, then more information on that species would become available, possibly allowing it to be re-categorized as Category 1 or 2. For example, a new stock assessment is under development for cabezon, a Category 3 species that has become more common in the nearshore recreational and commercial fisheries in recent years. This stock assessment covers waters off California, where cabezon are most frequently found. Once the assessment is complete, cabezon off California will be considered a Category 1 stock. Category 3 species currently include: cabezon and greenling; some of the flatfish species that are either not often commercially valuable or which are too small to be regularly caught in legal groundfish trawl nets, such as butter, curlfin, flathead, rex, and sand soles, pacific sanddab, and starry flounder; the FMP's six elasmobranch species (big, California, and longnose skates, leopard and soupfin sharks, spiny dogfish); as well as, finescale codling, Pacific rattail, and ratfish. In the harvest specifications and management measures, these species are grouped into either the “other flatfish” or “other fish” categories, as appropriate, and have species group ABCs for each West Coast management area based on historical landings for those species groups. This policy is consistent with the Technical Guidance for those species that are believed to be above B MSY for creating proxies in data poor situations. In general, there is not enough information about these species to determine whether they are above or below B MSY , a pre-condition for using the data-poor proxy creation guidance in the Technical Guidance. For 2005 and beyond, the Council is considering whether to apply its policies for “remaining rockfish” and “other rockfish” to the “other flatfish” and “other fish” species categories, to provide a precautionary adjustment for these Category 3 species. To see these policies in practice, refer to Table 1 in the 2004 specifications and management measures (69 FR 1380, January 8, 2004), footnotes for “other flatfish” and “other fish.”

Comment 8 : The harvest control rule established in the FMP to rebuild each overfished species should be consistent with the Technical Guidance.

Response : Harvest control rules for overfished species are used to set annual OYs for those species. As discussed above in the response to Comment 7, OYs for overfished species are species-specific and are intended to achieve the rebuilding goals for a particular species. The FMP contains default harvest control rules for stocks above B MSY , depleted stocks below B MSY but above the overfished threshold and, through Amendment 16-2, species-specific harvest control rules for lingcod, canary rockfish, darkblotched rockfish, and POP. The default harvest control rule was described earlier in the response to Comment 7. As discussed earlier, the 40-10 harvest control rule is generally consistent with the Technical Guidance because harvest rates set by that rule are always less than or equal to the MSY control rule (which is the overfishing level) and rates decline at low stock biomass levels. Species-specific control rules for the remaining overfished species will be added to the FMP through Amendments 16-3 and/or 16-4.

The Technical Guidance at section 3.4 provides suggestions for calculating mean generation time for overfished species, default rebuilding plans in the absence of species-specific rebuilding plans, and on addressing the role of uncertainty in rebuilding plans. Methods used by stock assessment scientists to determine mean generation time vary by species and according to quantity and quality of data available on that species' life history. For Amendment 16-2 species with T MINs greater than 10 years (canary rockfish, darkblotched rockfish, POP,) mean generation times were calculated with the approach recommended in the Technical Guidance.

We have already addressed the Council's default rebuilding policy in the response to Comment 7. For species-specific rebuilding plans, the Technical Guidance offers three suggestions for setting the rebuilding plan parameters and harvest control rule. First, the Technical Guidance suggests that, “The maximum rebuilding period, T MAX , should be 10 years, unless T MIN is greater than 10 years, when T MAX should be equal to T MIN plus one mean generation time.” This is the definition of T MAX provided by the national standard guidelines at section 600.310(e)(4)(ii)(B)( 3 ) and is the method that NMFS and the Council use to calcluate T MAX for overfished groundfish species.

Second, the Technical Guidance suggests that “the target rebuilding time period, T TARGET , should be as short as possible and lower than T MAX (although it could be adjusted upward to T MAX under the circumstances described in Section 600.310(e)(4) of the national standard guidelines.) We suggest that T TARGET not exceed the midpoint between T MIN and T MAX .” T TARGETs set for overfished groundfish species do not exceed T MAX . We addressed the suggestion that T TARGET not exceed the midpoint between T MIN and T MAX earlier in this document, in the response to Comment 3.

Finally, the Technical Guidance suggests that “if the stock is well below the minimum stock size threshold (MSST) (e.g. B ≤ 1/2 MSST), it may be necessary to set the fishing mortality rate as close to zero as possible (i.e., to that associated with unavoidable levels of bycatch) for a number of years. Since 2000, NMFS and the Council have pursued a policy of restricting or eliminating opportunities for fishers to directly target overfished stocks. In order to reduce unavoidable bycatch, directed harvest of more abundant stocks that co-occur with overfished species has also been curtailed. In 1998, prior to the declaration of any groundfish as overfished, the total commercial groundfish landings by weight were 274,690 mt. Total commercial groundfish landings by weight in 2003 were 168,589 mt, an approximate 39-percent reduction in commercial harvest. These reductions reflect measures to reduce overfished species take to unavoidable bycatch levels and to reduce opportunities for incidental harvest by also reducing directed fishing opportunities for more abundant species. The suite of management measures NMFS has implemented to limit overfished species take to unavoidable bycatch is described later in this document in the response to Comment 13.

On page 38, the Technical Guidance suggests addressing uncertainty with the guideline that “rebuilding plans be designed to possess a 50-percent or higher chance of achieving B MSY within T TARGET years, and a 90-percent or higher chance of achieving B MSY within T MAX years.” Rebuilding plans for the overfished species in Amendment 16-2 have been designed with a 50-percent chance of achieving B MSY within T TARGET years, although not with a 90-percent chance of achieving B MSY within T MAX years. Rebuilding plans in Amendment 16-2 provide a 60-percent chance for canary rockfish and lingcod, a 70-percent chance for POP, and an 80-percent chance for darkblotched rockfish to achieve their respective B MSY levels within T MAX years. As mentioned in the Preface to the Technical Guidance itself, it provides guidance on “those aspects of scientific fishery management advice that have biological underpinnings” and it recognizes that there are other important factors for fisheries management, such as the social and economic goals of the Magnuson-Stevens Act. Probabilities of achieving B MSY within T MAX years that are less than 90 percent have been established in order to meet varying needs of West Coast fishing communities, as discussed earlier in this document.

Comment 9 : One commenter stated that the Magnuson-Stevens Act requires the Secretary of Commerce to review rebuilding plans for overfished species every 2 years to ensure adequate progress toward rebuilding goals (16 U.S.C. 304(e)(7).) The Council has recommended reviewing rebuilding plans every 2-5 years, with progress toward rebuilding to MSY only to be reviewed when new stock assessments are provided for the species in question. This commenter expected that, regardless of the review process that the Council has recommended through Amendment 16-1, the Department of Commerce will meet its duty to review the rebuilding plans every 2 years.

A second commenter assumed that the Council's rebuilding plan review process was intended to be a substitute for a Secretarial review process. This commenter read Amendment 16-1 as authorizing NMFS and the Council to avoid the Magnuson-Stevens Act requirement to review the adequacy of rebuilding progress for overfished species managed under rebuilding plans every 2 years.

Response : The first commenter is correct. The FMP describes the Council's responsibilities. The Council's intended rebuilding plan review schedule is in Amendment 16-1. This schedule does not relieve NMFS of its duty to review, every two years, overfished species rebuilding plans for progress toward rebuilding goals. In addition, NMFS has worked with the Council staff to add a sentence to the FMP at the end of Section 4.5.3.6 to read, “Regardless of the Council's schedule for reviewing overfished species rebuilding plans, the Secretary of Commerce, through NMFS, is required to review the progress of overfished species rebuilding plans toward rebuilding goals every two years, per the Magnuson-Stevens Act at 16 U.S.C. 304(e)(7).” This statement is added to the FMP for the sake of clarity and in no way changes the intent or effect of either the FMP or Amendment 16-1.

Comment 10 : We recommend that Amendment 16-1 be expanded to include a discussion of the procedures that would be used to revise rebuilding plans. Rebuilding parameters specified in the FMP should be changed only when new scientific information is available that would warrant modification of these parameters. Changes to specifications for T MIN , T MAX , and T TARGET should only occur in response to a resolution of scientific uncertainty. These values should not be revised to accommodate greater direct or indirect harvest of overfished species.

Response : As described above in the responses to Comments 3 and 4, T MIN is the minimum time that it would take to rebuild the stock in the absence of fishing. An estimate of a stock's rebuilding time in the absence of fishing depends upon the estimate of that stock's growth rate. A stock's growth rate is affected by recruitment as reduced by natural mortality. Our understanding of recruitment rates tends to change with each new stock assessment, as new data are added to the assessment and as new year classes enter the fishery. Thus, as stock assessments are updated for each overfished species with the best available science, the T MIN estimate for those species will likely also be updated. T MIN is calculated from T 0 (the year the species was declared overfished) and that rebuilding start date would not change.

T MAX is T MIN plus one mean generation time. Thus, a species' estimated T MAX could change if that species' estimated T MIN changes. T MAX could also change if the best available scientific information on a species' mean generation time changes, which would be characterized as reduced uncertainty about the mean generation time parameter.

Unlike T MIN and T MAX , T TARGET is not set based solely on scientific information about a particular stock's recruitment or life history characteristics. T TARGET is T MIN , plus a time period that “may be adjusted upward to the extent warranted by the needs of fishing communities and recommendations by international organizations in which the United States participates,” although T TARGET may not exceed T MAX . Section 4.5.3.4 of the FMP, as added by Amendment 16-1, provides examples of when rebuilding plan parameters might be changed, but does not limit triggers for those changes: ”...Since the target year [T TARGET ] is a key rebuilding parameter, it should only be changed after careful deliberation. For example, the Council might recommend that the target year be changed if, based on new information, they determine that the existing target year is later than the recomputed maximum rebuilding time (T MAX ) or if a recomputed harvest control rule would result in such a low optimum yield as to cause substantial socioeconomic impacts. These examples are not definitive: the Council may elect to change the target year because of other circumstances. However, any change to the target year or harvest control rule must be supported by commensurate analysis.” If updated scientific information in a new stock assessment for a particular species warrants a change to that species' T MIN and T MAX , the Council may also consider changing the T TARGET for that species. In particular, T TARGET might be revised if that revision would prevent the complete closure of one or more sectors of the fishery.

Comment 11 : The Council's preferred alternative for the setting of standards used to determine whether rebuilding progress has been adequate to achieve rebuilding goals is that each rebuilding plan would have its own set of standards specific to the overfished stock in question. We ask that the Council's SSC or some other scientific body be convened to develop standards for measuring progress of rebuilding plans so as to meet the obligations of the Council's preferred alternative and to ensure that rebuilding time frames are not modified in the future based solely on fisheries management's failure to achieve fishing mortality related restrictions.

Response : NMFS agrees with the commenter's suggestion to ask the Council's SSC to review and develop standards for measuring the progress of rebuilding plans. NMFS made this request to the Council and SSC at the Council's November 2003 meeting. NMFS also made this request to the Council in its letter of approval for Amendment 16-1. In that letter, NMFS recommended that setting standards for measuring the progress of rebuilding plans be included in the SSC's Terms of Reference for the Stock Assessment Review (STAR) processes. NMFS review of the adequacy of progress of rebuilding plans will be primarily informed by stock assessment updates. By including the setting of rebuilding plan progress standards in the STAR processes for overfished species, the NMFS/Council process for developing and reviewing stock assessments would continue the link between stock assessments and rebuilding plans for overfished species.

Comment 12 : As the Council and its SSC work to develop standards for measuring the progress of rebuilding plans, we recommend adopting a standard such that if the probability of achieving T TARGET falls below 50 percent, then progress will be considered inadequate and the harvest control rule must be adjusted to increase the probability of rebuilding within T TARGET to at least 50 percent. We further recommend that, on an annual basis, NMFS and/or the Council compare annual total mortality levels with specified OY values to determine if overages have occurred. If overages have occurred, an inseason adjustment to harvest mortality rates should be made to compensate for these overages.

Response : Section 4.5.3.6 of the FMP, as inserted by Amendment 16-1, includes examples of standards that might be used to review rebuilding plan progress. The standard provided by the commenter is included in that section of the FMP and would be reviewed for use with particular overfished stocks in the process described in the response to Comment 11.

NMFS is required to annually report to Congress on whether ABC values have been exceeded, as exceeding an ABC set at F MSY would be considered overfishing. In looking at whether ABC values have been exceeded, NMFS also notes whether OY values have been exceeded and works with the Council to revise management measures so that OYs for the same species for subsequent years are not exceeded. Under the Technical Guidance at Section 1.3, OYs are target levels that, so long as they are less than or equal to MSY, should not be exceeded more than 50 percent of the time, nor on average. None of the West Coast groundfish OYs are knowingly set higher than MSY. Management measures are intended to achieve OYs without exceeding them, unless the achievement of a particular species' OY would negatively affect the rebuilding of a co-occurring overfished species. In such a case, management measures would be designed to keep the harvest under the OY of the healthy stock in order to rebuild the overfished stock. Thus, NMFS will continue to monitor whether the fisheries have exceeded ABCs or OYs and will continue to work with the Council to make inseason adjustments to management measures to prevent the fisheries from regularly exceeding OY target levels.

The Technical Guidance at Section 3.4 suggests that ”...[S]tock rebuilding should be monitored closely so that adjustments can be made when rebuilding milestones are not being met for whatever reason. For example, if target rebuilding Fs (fishing mortality rates set for overfished species management) are exceeded due to quota over-runs, subsequent target Fs should typically be adjusted downwards to put the stock back on the rebuilding time table.” For West Coast groundfish, NMFS and the Council monitor stock rebuilding progress through regular stock assessments. Stock assessments take harvest overages and underages into account in evaluating the status of a stock and whether rebuilding milestones are being met. F rates set subsequent to each new stock assessment will be set to keep the stock on its rebuilding trajectory.

Comment 13 : As we read Amendment 16-1, it does not require the Council and NMFS to include in a rebuilding plan those measures that are necessary to rebuild the overfished species in question. We are particularly concerned that Amendment 16-1 fails to mandate that the Council and NMFS include in rebuilding plans the bycatch minimization and habitat protection measures necessary to rebuild overfished groundfish species. The Magnuson-Stevens Act requires that each FMP minimize adverse effects [of fishing activities] on essential fish habitat, identify actions to protect essential fish habitat, and include all practicable measures to minimize bycatch and bycatch mortality. Further, Amendment 16-1 violates the Magnuson-Stevens Act's requirement that rebuilding plans be sufficient “to end overfishing in the fishery and to rebuild affected stocks of fish” (16 U.S.C. 1854(e)(3)(A)) because it suggests that rebuilding plans could use “flexible specifications” that would be implemented through the annual or biennial harvest specifications and management measures process. These types of specifications are so vague as to be meaningless and offer no protection to overfished species.

Response : West Coast groundfish fisheries are multi-species fisheries and the FMP covers over 80 species of fish. The nine overfished species managed under the FMP co-occur with many other, more abundant stocks. Because of this commingling of overfished and more abundant stocks, the varied fisheries that take groundfish all tend to have some effect on at least one of the overfished species. The FMP addresses how the fisheries as a whole are to be managed, whereas rebuilding plans are species-specific and define the parameters that govern the rebuilding of a particular species. The harvest specifications and management measures, on an annual or biennial basis, address the fisheries as a whole. Regulations implemented through the harvest specifications and management measures are intended to address all of the fisheries that take groundfish and, in large part, to minimize total catch of overfished species. Management measures in these regulatory packages are based on the most recently available scientific information on the status of the various groundfish stocks and fisheries. In managing a multi-species fishery, it is not necessary or practical to include all of the management measures that will be used to rebuild a particular overfished species in that species' rebuilding plan. It is important for the FMP as a whole to provide the structure to implement a variety of different management measures to rebuild overfished stocks, and to manage the fisheries as a whole in accordance with the Magnuson-Stevens Act. Relying on the whole FMP to protect overfished stocks within a multi-species fishery does not violate the Magnuson-Stevens Act.

The FMP and its rebuilding plans are sufficient “to end overfishing in the fishery and to rebuild affected stocks of fish” (16 U.S.C. 1854(e)(3)(A). They are neither vague nor meaningless. This Amendment 16-1 sets out the required elements for a rebuilding plan. The FMP states in section 4.6.1.5. that “OY recommendations will be consistent with established rebuilding plans and achievement of their goals and objectives. . . . (b) In cases where a stock or stock complex is overfished, Council action will specify OY in a manner that complies with rebuilding plans developed in accordance with Section 4.5.2. The Plan further states at 5.1.4 “For any stock the Secretary has declared overfished or approaching the overfished condition, or for any stock the Council determines is in need of rebuilding, the Council will implement such periodic management measures as are necessary to rebuild the stock by controlling harvest mortality, habitat impacts, or other effects of fishing activities that are subject to regulation under the biennial process. These management measures will be consistent with any approved rebuilding plan.” Most management measures used in the fishery are described in section 6 of the FMP. The existing emergency rule for groundfish for January and February 2004, (69 FR 13222; January 8, 2004), implements the first four rebuilding plans, and the interim rebuilding strategies for the remaining overfished species for January and February. The proposed rule for groundfish for 2004 (69 FR 1380; January 8, 2004), proposes ABCs/OYs and management measures that implement the rebuilding plans. The management of overfished species for 2004 is summarized at 69 FR 1380.

The Magnuson-Stevens Act at section 303(a) describes the required provisions of any Federal fishery management plan. Sub-paragraph 303(a)(7) requires that the FMP describe and identify essential fish habitat (EFH) and “minimize to the extent practicable adverse effects on such habitat caused by fishing...” Sub-paragraph 303(a)(11) requires that the FMP “establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery, and include conservation and management measures that, to the extent practicable and in the following priority: (A) minimize bycatch; and (B) minimize the mortality of bycatch which cannot be avoided.”

Amendment 11 to the FMP provided a description within the FMP of EFH for West Coast groundfish. Amendment 11 was challenged in American Oceans Campaign v. Daley 183 F. Supp. 2d1 (D.C.C. 2000,) along with challenges to fisheries managed by the Caribbean, Gulf of Mexico, New England, and North Pacific fishery management councils. For West Coast groundfish, the Court found that NMFS had not conducted an adequate National Environmental Policy Act (NEPA) analysis on the effects of fishing on groundfish EFH. NMFS is drafting an environmental impact statement (draft EIS) on groundfish EFH and is scheduled to release the draft EIS for public review through the Environmental Protection Agency in February 2005. Further information on this EIS is available at: http://www.nwr.noaa.gov/1sustfsh/groundfish/eis_efh/efh/ .

Amendment 11 described EFH for West Coast groundfish based on information that was available in 1998, when the amendment was completed. Since that time, there have been notable increases in funding for EFH research and improvements in ocean habitat mapping technologies. These research and mapping improvements are informing the drafting of the new EFH DEIS. Until the completion of that DEIS, Amendment 11's descriptions of EFH for each of the overfished species must serve to characterize species-specific EFH and to inform management measures intended to rebuild those species. For example, the EFH appendix to Amendment 11 (online at http://www.nwr.noaa.gov/1sustfsh/efhappendix/page1.html ) provides descriptions of the habitats used by the 80+ species in the FMP, including the ocean depths where those species are commonly found. The Council used these habitat descriptions in the development of its Rockfish Conservation Areas (RCAs), which are intended to protect the suite of continental shelf and slope overfished species in waters where they are commonly found. RCAs are primarily intended to protect overfished stocks from being incidentally harvested by vessels targeting more abundant species. Closure of these areas, however, also protects habitat within the RCAs from the effects of groundfish fishing gear. NMFS anticipates that the new EFH EIS will allow the Council to incorporate more data-rich descriptions of the EFH of individual groundfish species into its groundfish fishery management planning.

Section 303(a) of the Magnuson-Stevens Act requires that the FMP as a whole include a description of EFH and EFH protection measures. It does not require that each amendment to the FMP describe EFH and provide EFH protection measures. The commenter is correct in stating that Amendment 16-1 does not require overfished species rebuilding plans to include EFH protection measures. However, the commenter is incorrect in then concluding that overfished species are not adequately protected by the FMP.

Amendment 13 to the FMP addressed bycatch in the West Coast groundfish fisheries and was also challenged in Court, Pacific Marine Conservation Council, Inc. v. Evans , 200 F. Supp. 2d1194 (N.D. Calif. 2002). The Court held that Amendment 13 failed to establish an adequate bycatch reporting methodology, did not comply with the duty to minimize bycatch and bycatch mortality, and violated NEPA because NMFS did not take “hard look” at the environmental consequences of Amendment 13, and failed to consider a reasonable range of alternatives and their environmental consequences. In particular, the Court concluded that Amendment 13 failed to establish a standardized reporting methodology because it failed to establish either a mandatory or an adequate observer program. Further, it failed to minimize bycatch and bycatch mortality because it failed to include all practicable management measures in the FMP itself. The Court also found a lack of reasoned decisionmaking because four specific bycatch reduction measures (fleet size reduction, marine reserves, vessel incentives, and discard caps) were rejected without consideration on their merits. With respect to NEPA, the environmental assessment prepared for Amendment 13 failed to address adequately the ten criteria for an action's significance set forth in the Council on Environmental Quality (CEQ) regulations at 40 CFR 1508.27(b), and also failed to analyze reasonable alternatives, particularly the immediate implementation of an adequate at-sea observer program and bycatch reduction measures.

NMFS is drafting an EIS to address the court's requirement for a new NEPA analysis on bycatch in the groundfish fisheries and is scheduled to release the draft EIS for public review through the Environmental Protection Agency in early 2004. Further information on this EIS is available at: http://www.nwr.noaa.gov/1sustfsh/groundfish/eis_efh/pseis/ . NMFS has implemented numerous bycatch reduction measures since the Council's approval of Amendment 13 in 2000. The agency has supported full retention or full utilization Exempted Fishing Permit (EFP) programs for the Washington arrowtooth flounder trawl, yellowtail rockfish trawl and longline dogfish fisheries, and for the California flatfish trawl fishery. Shorter-than-year-round fishing seasons have been set for various species and sectors of the groundfish fleet in order to protect different overfished groundfish species. Amendment 14 to the FMP implemented a permit stacking program for the limited entry fixed gear fleet that reduced the number of vessels participating in the primary sablefish fishery by about 40 percent. In 2003, NMFS implemented a buyback of limited entry trawl vessels and their permits, reducing the groundfish trawl fleet by about one-third. NMFS has implemented gear modification requirements that restrict the use of trawl gear in rockier habitat and constrain the catching capacity of recreational fishing gear. Higher groundfish landings limits have been made available for trawl vessels using gear or operating in areas where overfished species are less likely to be taken. Species-to-species landings limit ratios have been thoroughly re-examined in a groundfish bycatch model first introduced in 2002 and modified each intervening year as new observer program data become available. The development and use of this bycatch model and the implementation of the NMFS West Coast Groundfish Observer Program (WCGOP) in August 2001 serve to address the court's order that NMFS implement an adequate bycatch assessment methodology. The RCAs described earlier in this document and implemented through 50 CFR 660.304 and the harvest specifications and management measures are large time/area closures that affect the entire West Coast and are specifically designed to reduce the incidental catch of overfished groundfish species in fisheries targeting more abundant stocks.

The FMP, as amended by Amendment 16-1, complies with the Magnuson-Stevens Act at section 303(a)(11). NMFS has had the WCGOP, which uses a standardized reporting methodology, in place since August 2001. Data from this observer program, from historic observer programs, and from fishery-dependent data inform the bycatch model for West Coast groundfish fisheries. These data sources together with their use in the bycatch model, which is used to analyze where and when different sectors of the groundfish fleet have targeted and may target groundfish, comprise an adequate reporting methodology on the amount and type of bycatch occurring in the fishery. NMFS has implemented numerous management programs and measures to reduce bycatch in the groundfish fisheries. The upcoming draft EIS on bycatch in the groundfish fisheries will provide information on how NMFS might further improve its bycatch reduction program for West Coast groundfish fisheries.

Comment 14 : Amendment 16-1 fails to mandate an adequate observer program for the Pacific Coast groundfish fishery. While Amendment 16-1 does require NMFS to “implement an observer program through a Council-approved regulatory framework,” (FMP Section 6.1.5.2) it does not contain any requirements for the scope or adequacy of this observer program. The Magnuson-Stevens Act requires that NMFS establish in the FMP a bycatch assessment methodology that is sufficient to show “the amount and type of bycatch occurring in the fishery.” 16 U.S.C. 1853(a)(11). The court in PMCC v. Evans, supra, rejected Amendment 13 in part because it failed to establish a mandatory and adequate observer program in the FMP. Because Amendment 16-1 does not mandate an adequate observer program in the FMP, it violates the Magnuson-Stevens Act and fails to cure Amendment 13's failure under PMCC v. Evans .

Response : At 16 U.S.C. 1853(a)(11), the Magnuson-Stevens Act requires that FMPs, among other things, “establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery...” Amendment 16-1 revises the FMP so that it states at section 6.5.1.2, “The [NMFS] Regional Administrator will implement an observer program through a Council-approved Federal regulatory framework. Details of how observer coverage will be distributed across the West Coast groundfish fleet will be described in an observer coverage plan. NMFS will publish an announcement of the authorization of the observer program and description of the observer coverage plan in the Federal Register .”

NMFS first implemented an observer program for the West Coast groundfish fisheries using a standardized bycatch reporting methodology in August 2001. The WCGOP observer coverage plan is available via the internet at: http://www.nwfsc.noaa.gov/research/divisons/fram/Observer . NMFS published its announcement of the authorization of the observer program and description of the observer coverage plan on January 10, 2002 (67 FR 1329). In the first year of the WCGOP (August 2001-August 2002), NMFS focused observer coverage largely on the non-whiting groundfish trawl fleet, with some pilot effort in the nontrawl limited entry and open access fleets. Observer coverage for the nontrawl fleet, particularly for limited entry vessels with sablefish endorsements expanded during the second year of the observer program (September 2002-August 2003). In September 2003, NMFS reported to the Council on bycatch modeling and observer data developments. WCGOP has focused its coverage on the limited entry trawl fleet because that fleet annually makes greater than 95 percent (by weight) of commercial West Coast groundfish landings coastwide (PacFIN, 1999-2003). Under the WCGOP coverage plan, the program has a goal of 10-percent coverage of trawl landings in any one year. With its 30-40 observers available each year, the WCGOP has been able to select each trawl fleet participant for coverage for at least one cumulative limit period in each year. Observer coverage levels are dependent upon the number of vessels actively participating in the fishery and on available program funding. Data from the first year of the observer program are available on the WCGOP site, mentioned earlier in this paragraph. NMFS is evaluating data from the second year of observer coverage and plans to release a data report on the WCGOP activities over September 2002-August 2003 in January 2004.

Following the release of the first year of WCGOP data in January 2003, NMFS incorporated observer program data on the bycatch of overfished species into the bycatch model. The Council began to use observer data to inform inseason groundfish management at its April 2003 meeting. For the 2004 fishing year, NMFS has further revised the bycatch model to incorporate discard rates on both overfished and targeted species, as generated by observer data. Because the second year of the WCGOP increased coverage of the limited entry nontrawl fleet, NMFS plans to further modify the 2004 bycatch model to incorporate nontrawl data once it has compiled and released that second year's data. The agency expects that data from the second year of the WCGOP will be incorporated into inseason groundfish fisheries management by the April 2004 Council meeting, and will be used in the development of 2005-2006 management measures.

With Amendment 16-1, the FMP mandates an observer program for the groundfish fishery, which NMFS has implemented. The commenter also wishes the FMP to discuss the scope and adequacy of an observer program, whereas the FMP defers the design of the observer program to NMFS.

Over the past year, NMFS has been reviewing the agency's approach to standardized bycatch monitoring programs for all federally managed fisheries. The report, “Evaluating Bycatch: A National Approach to Standardized Bycatch Monitoring Programs,” is available on the internet at: http://www.nmfs.noaa.gov/bycatch.htm . Also available at that website is the “NOAA Fisheries Objectives, Protocol, and Recommended Precision Goals for Standardized Bycatch Reporting Methodologies.” This latter report addresses the question of the adequacy of an observer program or other standardized reporting methodology by setting “precision goals” for monitoring programs. According to this report, the levels of precision NMFS strives to achieve for fishery resources, excluding species protected under the ESA or MMPA, caught as bycatch in a fishery as “a 20-30 percent CV [coefficient of variation] for estimates of total discards (aggregated over all species) for the fishery; or if total catch cannot be divided into discards and retained catch then the recommended goal for estimates of total catch is a CV of 20-30 percent.” In setting these precision goals, NMFS recognizes that “(1) there are intermediate steps in increasing precision which may not immediately achieve the goals; (2) there are circumstances in which higher levels of precision may be desired, particularly when management is needed on fine spatial or temporal scales; (3) there are circumstances under which meeting the precision goal would not be an efficient use of public resources; and (4) there may be significant logistical constraints to achieving the goal.”

The “Evaluating Bycatch” report characterizes the WCGOP as a “developing” observer program, meaning that it is a program “in which an established stratification design has been implemented and alternative allocation schemes [for observer coverage] are being evaluated to optimize sample allocations by strata to achieve the recommended goals of precision of bycatch estimates for the major species of concern.” The next step beyond a developing observer program is a “mature” program “in which some form of an optimal sampling allocation scheme has been implemented. The program is flexible enough to achieve the recommended goals of precision of bycatch estimates for the major species of concern considering changes in the fishery over time.”

As discussed above, NMFS has released the second year of observer data in January 2004 ( http://www.nwfsc.noaa.gov/research/divisions/fram/Observer ). Because observer coverage in the WCGOP has been largely focused on the trawl fishery, NMFS expects that it will have achieved the NMFS precision goals of 20-30 percent CV for estimates of total discards in the trawl fishery and of 20-30 percent CV for estimates of species-specific discards of those overfished species that are commonly taken in the trawl fishery. For overfished species that are either not commonly taken in the trawl fishery, such as yelloweye rockfish, or species that are unavailable to the fisheries because of large area closures, such as cowcod, NMFS expects that the current trawl-focused sampling program will not achieve the 20-30 percent CV precision goal. As it works toward becoming a mature observer program, the WCGOP will likely have to increase observer coverage of nontrawl vessels in order to get a more precise estimate of yelloweye rockfish bycatch. For cowcod, a rare event species with large portions of its habitat closed to fishing, evaluation of annual mortality may have to take some form other than a fishery observation program.

At section 6.3.3, the FMP identifies the management need for an observer program or other bycatch measurement program as an aid for the Council to “better identify and prioritize the bycatch problems in the groundfish fishery, based on the expected benefits to the U.S. and on the practicality of addressing these problems.” The Council has used data from WCGOP to re-shape its landings limits and time/area closures. The Council has also used WCGOP data to evaluate species-to-species landings limit ratios, as well as species-to species catch ratios in the bycatch model. NMFS expects that the WCGOP will continue to meet the Council's need to identify and prioritize bycatch problems in the groundfish fishery, and that WCGOP data will continue to directly inform both annual and inseason management measures.

Comment 15 : On the issue of what legal obligations apply if a groundfish species is listed under the ESA. Amendment 16-1 must make absolutely clear that NMFS and the Council must comply with all obligations imposed by both the Magnuson-Stevens Act and the ESA.

Response : Amendment 16-1 establishes a new section 4.5.3.7 in the FMP. This section provides guidance on how the Council and NMFS would address the mandates of the Magnuson-Stevens Act and the ESA if a groundfish species were to be listed as either threatened or endangered under the ESA at some future time. Section 4.5.3.7 states that “measures under a[n ESA] recovery plan or 'no jeopardy' standards in a biological opinion will supercede [Magnuson-Stevens Act] rebuilding plan measures and targets if they will result in the stock rebuilding to its target biomass by an earlier date than the target year identified in the current rebuilding plan.” This section is intended to guide the Council and NMFS to ensure that, if a species is listed under the ESA, rebuilding and recovery will follow the mandates of both the Magnuson-Stevens Act and the ESA, while also rebuilding the stock at the most rapid rate required by law. Amendment 16-1 does not imply, nor does it have the effect of providing NMFS and/or the Council with an avenue to fail to comply with either the Magnuson-Stevens Act or the ESA for any species that may be managed under both of these laws.

Comment 16 : In our review of the amendatory language for the FMP, we noted that Section 4.2 of the FMP (Determination of MSY or MSY Proxy and B MSY ) contains some outdated language, “...management should avoid fishing rates that hold biomass below B MSY for long periods.” This language does not comport with the Magnuson-Stevens Act and should be removed from the FMP.

Response : NMFS has worked with Council staff to ensure that this sentence is removed from the FMP. The paragraph containing this sentence is essentially narrative and the referenced sentence not only does not comport with the Magnuson-Stevens Act, but also does not comport with FMP policies for setting harvest rates. NMFS and Council staff believe that leaving this sentence in the FMP was an editorial oversight and removing it now in no way changes the intent or effect of either the FMP or Amendment 16-1.

Comment 17 : Amendment 16-1 adds a new sentence to the FMP that reads in reference to the decline of overfished stock abundance, “Further declines below the overfished levels in the 1990s were due mostly to much lower than expected recruitment.” While recruitment is a big part of the current plight of groundfish, many other factors contributed to the condition of these species. Improper accounting of bycatch in the 1980s and 1990s and the failure to heed scientific advice were contributing factors to the decline of groundfish stocks. Amendment 16-1 also proposes to delete language regarding a historical account of the Council's use of fishing mortality rates based on scientific information. We urge NMFS to keep these discussions in the FMP to better document the genesis of current fishing mortality rates.

Response : NMFS has worked with Council staff to retain the historical discussion of how the Council and its SSC have reviewed and revised groundfish harvest policies over time. This historical information provides a more accurate characterization of groundfish overharvest in the 1990s. As discussed in the FMP, groundfish science in the 1990s was characterized in part by increasing evidence that groundfish recruitment rates were lower than had been thought. A 2000 review of groundfish harvest rates by the Council's SSC showed that then-current scientific information indicated both lower than historically estimated recruitment levels for West Coast groundfish and a corresponding need for lower than historically used harvest rates. Since 2000, NMFS and the Council have set ABCs for groundfish species at the following rates: F 40% for flatfish, F 50% for rockfish (including thornyheads), and F 45% for other groundfish such as sablefish and lingcod. Upon reviewing this historical language, NMFS and Council staff agreed that the sentence discussed by the commenter should be changed to read, “Further declines below the overfished levels in the 1990s were due in large part to harvest rate policies that were later discovered to not be sustainable. More recent stock assessments indicate that West Coast groundfish stocks likely have lower levels of productivity than other similar species worldwide. Based on this retrospective information, harvest rate policies in the 1990s were too high to maintain stocks at B MSY . The Council revised its harvest rate policies for lower levels of production, described [later in the FMP].” This section of the FMP is essentially narrative in nature and this revision would in no way change the intent or effect of either the FMP or Amendment 16-1.

Regulations to implement Amendment 16-1 establish a new section of the Federal groundfish regulations at 50 CFR 660.370, “Overfished Species Rebuilding Plans.” Because Amendment 16-1 provides a framework for future rebuilding plans, the regulations implemented through this action similarly provide a framework within Federal groundfish regulations for future species-specific rebuilding plans. On November 7, 2003 (68 FR 63053), NMFS published a Notice of Availability for Amendment 16-2 to the FMP, which would set the first four overfished species rebuilding plans (canary rockfish, darkblotched rockfish, lingcod, POP) in the FMP and implement those rebuilding plans within 50 CFR 660.370. Public scoping for Amendment 16-3, which would cover the next four rebuilding plans (bocaccio, cowcod, widow rockfish and yelloweye rockfish), was held at the Council's November 2003 meeting. The Council is scheduled to finalize Amendment 16-3 at its April 2004 meeting, after which it will submit the amendment to NMFS for review. The final rebuilding plan for Pacific whiting, will be Amendment 16-4, is scheduled for Council consideration and NMFS implementation in 2004.

The Administrator, Northwest Region, NMFS, has determined that Amendment 16-1 is necessary for the conservation and management of the Pacific Coast groundfish fishery and that it is consistent with the Magnuson-Stevens Act and other applicable laws.

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

The Council prepared a FRFA describing the impact of this action on small entities. The FRFA incorporates the IRFA which was summarized in the proposed rule on September 5, 2003 (68 FR 52732).

The following is a summary of the FRFA. A description of the action, why it is being considered, and the legal basis for this action are contained in the SUMMARY and BACKGROUND of the preamble to the proposed rule for this action and at the beginning of this final rule. There are no recordkeeping, reporting, or other compliance issues forthcoming from this proposed rule. This action does not duplicate, overlap, or conflict with other Federal rules. None of the comments received on the proposed rule addressed the economic impacts of the rule.

A fish-harvesting business is considered a “small” business by the Small Business Administration (SBA) if it has annual receipts not in excess of $3.5 million. Approximately 1,560 vessels participate in the West Coast groundfish fisheries. Of those, about 410 vessels are registered to limited entry permits issued for either trawl, longline, or pot gear. About 1,150 vessels land groundfish against open access limits while either directly targeting groundfish or taking groundfish incidentally in fisheries directed at non-groundfish species. All but 10-20 of those vessels are considered small businesses by the SBA. This final rule is not expected to yield disproportionate economic impacts between those small and large entities. In the 2001 recreational fisheries, there were 106 Washington charter vessels engaged in salt water fishing outside of Puget Sound, 232 charter vessels active on the Oregon coast and 415 charter vessels active on the California coast.

This final rule is administrative in nature and affects only the administrative process by which individual species rebuilding plans are formulated, and so does not have significant adverse economic effects on consumers, producers or processors of groundfish. The Council considered the form (FMP amendments, regulations, a combination thereof) and required elements of a rebuilding plan. The remaining issues are concerned with setting internal Council standards for periodic review and modification of rebuilding plans, and defining the interaction of a rebuilding plan with recovery plans for a rebuilding species that is subsequently listed under the ESA.

For the main issue considered in this action, the form of rebuilding plans, the Council considered 4 alternatives. The first alternative, the status quo alternative, would have maintained rebuilding plan formatting standards from Amendment 12. These status quo formatting standards were disapproved by the Court because they did not set rebuilding plans in the form of an FMP, an FMP amendment, or Federal regulations. The Council did not adopt the status quo alternative because it had already been disapproved by the Court. The second alternative would have implemented rebuilding plans as FMP amendments, with rebuilding parameters specified in the FMP. This second alternative was not adopted by the Council because it would have created a burdensome process for reviewing and revising rebuilding plan parameters and goals, possibly slowing the inclusion of the most recently available science into rebuilding plans. The third alternative would have implemented rebuilding plans entirely as Federal regulations, with T TARGET and a harvest control rule for each overfished species specified in regulations. This third alternative was not adopted by the Council because it would have separated rebuilding plan parameters and goals from rest of the Council's policies on groundfish harvest rates, which are found within the FMP. The final and preferred alternative specifies T TARGET and the harvest control for each overfished species in Federal regulations, and places the formulas and methodology for determining rebuilding parameters in the FMP. The preferred alternative was chosen because it requires a clear record in the FMP of the rebuilding plan standards that were in place at the start of each rebuilding plan, while also maintaining a current record in Federal regulations of the rebuilding plan parameters that directly govern the setting of annual or biennial harvest levels.

While there will be no direct impact on small entities as a result of adopting any particular process for formulating rebuilding plans, the implementation of specific rebuilding plans for overfished species may entail substantial economic impacts for groundfish processors, commercial harvesters and recreational charter vessels. These type of impacts are specific to particular stocks or species and so will be addressed in the individual rebuilding plans themselves. While there may be slight differences between the alternatives in the amount of administrative capacity required to formulate and implement individual species rebuilding strategies, these differences are not quantifiable and will depend more on the variability of periodic stock assessments once a particular rebuilding plan is adopted than on the effects of these proposed actions or the subsequent adoption of individual rebuilding plans.

Administrative practice and procedure, American Samoa, Fisheries, Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, Reporting and recordkeeping requirements.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The interim 2004 TAC of Pacific cod apportioned to vessels catching Pacific cod for processing by the inshore component in the Western Regulatory Area is 7,553 metric tons (mt) as established by the interim 2004 harvest specifications of groundfish for the GOA (68 FR 67964, December 5, 2003).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the interim 2004 TAC of Pacific cod apportioned to vessels catching Pacific cod for processing by the inshore component of the Western Regulatory Area of the GOA will be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 7,433 mt, and is setting aside the remaining 120 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance will soon be reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by vessels catching Pacific cod for processing by the inshore component in the Western Regulatory Area of the GOA.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent the Agency from responding to the most recent fisheries data in a timely fashion and would delay the closure of the fishery under the interim 2004 TAC of Pacific cod apportioned to vessels catching Pacific cod for processing by the inshore component of the Western Regulatory Area of the GOA.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by section 679.20 and is exempt from review under Executive Order 12866.