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Federal Register / Vol. 67, No.

216 / Thursday, November 7, 2002 / Rules and Regulations 67793

the natural progress of the disease. Catalog of Federal Domestic Assistance tropical diseases the fact that the
Additionally, section 1113(a) of title 38, The Catalog of Federal Domestic veteran had no service in a locality
United States Code, indicates that a Assistance program numbers are 64.109 having a high incidence of the disease
presumption of service connection and 64.110. may be considered as evidence to rebut
based on manifestations of disability the presumption, as may residence
subsequent to service may be rebutted List of Subjects in 38 CFR Part 3 during the period in question in a region
by affirmative evidence to the contrary Administrative practice and where the particular disease is endemic.
or evidence to establish that such procedure, Claims, Disability benefits, The known incubation periods of
disability is due to an intercurrent Individuals with disabilities, Pensions, tropical diseases should be used as a
disease or injury suffered after Veterans. factor in rebuttal of presumptive service
separation from service. We are revising Approved: September 9, 2002.
connection as showing inception before
§ 3.307(d) to reflect these principles. or after service.
Anthony J. Principi,
Although Splane did not discuss the (2) The presumption of aggravation
Secretary of Veterans Affairs. provided in this section may be rebutted
criteria for rebutting the presumption of
aggravation, we believe that inclusion of For the reasons set forth in the by affirmative evidence that the
these rebuttal standards is necessary to preamble, the Department of Veterans preexisting condition was not
Affairs amends 38 CFR part 3 as follows: aggravated by service, which may
the implementation of that decision.
include affirmative evidence that any
Administrative Procedure Act PART 3—ADJUDICATION increase in disability was due to an
intercurrent disease or injury suffered
Changes made by this final rule Subpart A—Pension, Compensation,
after separation from service or evidence
merely reflect the statutory and Dependency and Indemnity
sufficient, under § 3.306 of this part, to
requirements or the decision of the Compensation
show that the increase in disability was
United States Court of Appeals for the 1. The authority citation for part 3, due to the natural progress of the
Federal Circuit. Accordingly, there is a subpart A continues to read as follows: preexisting condition.
basis for dispensing with prior notice
Authority: 38 U.S.C. 501(a), unless (Authority: 38 U.S.C 1113 and 1153)
and comment and delayed effective date
otherwise noted.
provisions of 5 U.S.C. 552 and 553. § 3.309 [Amended]
2. Section 3.307 is amended by:
Unfunded Mandates A. In paragraph (a) introductory text, 3. Section 3.309(a) is amended by
removing ‘‘incurred in’’ and adding, in removing ‘‘incurred in’’ and adding, in
The Unfunded Mandates Reform Act its place, ‘‘incurred in or aggravated its place, ‘‘incurred in or aggravated
requires, at 2 U.S.C. 1532, that agencies by’’. by’’.
prepare an assessment of anticipated B. In paragraph (c), removing the last
costs and benefits before developing any [FR Doc. 02–28267 Filed 11–6–02; 8:45 am]
sentence ‘‘The consideration of service
rule that may result in an expenditure BILLING CODE 8320–01–P
incurrence provided for chronic
by State, local, or tribal governments, in diseases will not be interpreted to
the aggregate, or by the private sector of permit any presumption as to
$100 million or more in any given year. aggravation of a preservice disease or DEPARTMENT OF COMMERCE
This rule would have no consequential injury after discharge.’’.
effect on State, local, or tribal C. Revising paragraph (d) and the National Oceanic and Atmospheric
governments. authority citation at the end of the Administration
Paperwork Reduction Act The revision reads as follows: 50 CFR Parts 222 and 223
This document contains no provisions § 3.307 Presumptive service connection [Docket No. 021031262–2262–01; I.D.
constituting a collection of information for chronic, tropical or prisoner-of-war 103002A]
under the Paperwork Reduction Act (44 related disease, or disease associated with
RIN 0648–AQ56
U.S.C. 3501–3520). exposure to certain herbicide agents;
wartime and service on or after January 1,
Executive Order 12866 1947.
Sea Turtle Conservation; Shrimp
Trawling Requirements
* * * * *
This document has been reviewed by (d) Rebuttal of service incurrence or AGENCY: National Marine Fisheries
the Office of Management and Budget aggravation. (1) Evidence which may be Service (NMFS), National Oceanic and
under Executive Order 12866. considered in rebuttal of service Atmospheric Administration (NOAA),
Regulatory Flexibility Act incurrence of a disease listed in § 3.309 Commerce.
will be any evidence of a nature usually ACTION: Temporary rule; request for
The Secretary hereby certifies that accepted as competent to indicate the comments.
this final rule will not have a significant time of existence or inception of
economic impact on a substantial disease, and medical judgment will be SUMMARY: NMFS issues this temporary
number of small entities as they are exercised in making determinations authorization to allow the use of limited
defined in the Regulatory Flexibility relative to the effect of intercurrent tow times by shrimp trawlers as an
Act, 5 U.S.C. 601–612. This amendment injury or disease. The expression alternative to the use of Turtle Excluder
would not directly affect any small ‘‘affirmative evidence to the contrary’’ Devices (TEDs) in certain waters off
entities. Only individuals could be will not be taken to require a conclusive Louisiana and Alabama. The exempted
directly affected. Therefore, pursuant to showing, but such showing as would, in area in Louisiana consists of all the
5 U.S.C. 605(b), this final rule is exempt sound medical reasoning and in the Louisiana state waters east of 92° 20′ W.
from the initial and final regulatory consideration of all evidence of record, long. (approximately at Fresh Water
flexibility analyses requirements of support a conclusion that the disease Bayou in Vermilion Parish, Louisiana);
sections 603 and 604. was not incurred in service. As to Federal waters are not included. The

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67794 Federal Register / Vol. 67, No. 216 / Thursday, November 7, 2002 / Rules and Regulations

exempted area in Alabama consists of The TEDs incorporate an escape of excessive storm-related debris on the
the inshore waters (inshore waters are opening, usually covered by a webbing fishing grounds. The increase in debris
landward of the COLREGS demarcation flap, that allows sea turtles to escape on the shrimping grounds was the result
line) of Bon Secour Bay, Mobile Bay, from trawl nets. To be approved by of Tropical Storm Isidore and Hurricane
and Mississippi Sound, south of the NMFS, a TED design must be shown to Lili. After an investigation, the LADWF
Intracoastal Waterway. This exemption be at least 97 percent effective in and ALDCNR determined that this
will be in effect for 30 days and is excluding sea turtles during debris is affecting the fishermen’s ability
necessary to relieve the economic experimental TED testing (50 CFR to use TEDs effectively. Both Louisiana
hardship on shrimpers while ensuring 223.207(e)). The TED must meet generic and Alabama have stated that their
adequate protection of threatened and criteria based upon certain parameters marine enforcement agencies will
endangered sea turtles. of TED design, configuration, and enforce the tow time restrictions.
DATES: This action is effective from installation, including height and width NMFS gear technicians interviewed
November 1, 2002 through December 2, dimensions of the TED opening through fishermen and surveyed parts of the
which the turtles escape. In the Atlantic affected areas in Louisiana and Alabama
2002. Comments on this action are
Area, these requirements are currently on October 23 and 24, 2002. The
requested, and must be received by
December 2, 2002. ≥35 inches (≥89 cm) in width and ≥12 interviews and surveys conducted by
inches (≥30 cm) in height. In the Gulf the gear technicians and phone
ADDRESSES: Comments on this action Area, the requirements are ≥32 inches conversations between NMFS Southeast
should be addressed to the Chief, (≥81 cm) in width and ≥10 inches (≥25 Region Protected Resources staff and
Endangered Species Division, Office of cm) in height. state resource agency staffs confirmed
Protected Resources, NMFS, 1315 East- The regulations governing sea turtle that there are problems with debris in
West Highway, Silver Spring, MD take prohibitions and exemptions Louisiana from the Mississippi/
20910. provide for the use of limited tow times Louisiana border around the mouth of
FOR FURTHER INFORMATION CONTACT: Bob as an alternative to the use of TEDs for the Mississippi River to approximately
Hoffman, 727–570–5312, or Barbara A. vessels with certain specified Fresh Water Bayou in Vermilion Parish,
Schroeder, 301–713–1401. characteristics or under certain special Louisiana and in Alabama from Bon
circumstances. For example, debris can Secour Bay to the Alabama/Mississippi
clog a TED which renders the TED border between the Intracoastal
Background ineffective at catching shrimp as well as Waterway and the barrier islands.
excluding turtles. The provisions of 50
All sea turtles that occur in U.S. Special Environmental Conditions And
CFR 223.206 (d)(3)(ii) specify that the
waters are listed as either endangered or Alternative to Required Use of TEDs
NOAA Assistant Administrator for
threatened under the Endangered The AA finds that debris washed into
Fisheries (AA) may authorize
Species Act of 1973 (ESA). The Kemp’s compliance with tow time restrictions portions of state waters of Louisiana and
ridley (Lepidochelys kempii), as an alternative to the TED requirement Alabama from Tropical Storm Isidore
leatherback (Dermochelys coriacea), and for up to 30 days, if the AA determines and Hurricane Lili have created special
hawksbill (Eretmochelys imbricata) that the presence of algae, seaweed, environmental conditions that make
turtles are listed as endangered. The debris, or other special environmental trawling with TED-equipped nets
loggerhead (Caretta caretta) and green conditions in a particular area makes impracticable. Therefore, the AA issues
(Chelonia mydas) turtles are listed as trawling with TED-equipped nets this notification to authorize the use of
threatened, except for breeding impracticable. The provisions of 50 CFR restricted tow times as an alternative to
populations of green turtles in Florida 223.206(d)(3)(i) specify the maximum the use of TEDs in the state waters of
and on the Pacific coast of Mexico, tow times that may be used when tow- Louisiana (no Federal waters are
which are listed as endangered. time limits are authorized as an included with this authorization) from
The incidental take and mortality of alternative to the use of TEDs. The tow east of 92° 20′ W. long. (approximately
sea turtles as a result of trawling times may be no more than 55 minutes at Fresh Water Bayou, in Vermilion
activities have been documented in the from April 1 through October 31 and no Parish, Louisiana) and in Alabama
Gulf of Mexico and along the Atlantic more than 75 minutes from November 1 inshore waters (inside the COLREGS
Ocean seaboard. Under the ESA and its through March 31 as measured from the demarcation line) including Bon Secour
implementing regulations, taking sea time that the trawl doors enter the water Bay, Mobile Bay, and Mississippi Sound
turtles is prohibited, with exceptions until they are removed from the water. south of the Intracoastal Waterway. This
identified in 50 CFR 223.206 and 50 These tow time limits are designed to authorization will be in effect for a
CFR 224.104. The regulations require minimize the level of mortality of sea period of 30 days, unless terminated
most shrimp trawlers and summer turtles that are captured by trawl nets earlier. Instead of the required use of
flounder trawlers operating in the not equipped with TEDs. TEDs, shrimp trawlers may opt to
southeastern United States (Atlantic comply with the sea turtle conservation
Area, Gulf Area, and Summer flounder Recent Events regulations found at 50 CFR
fishery-sea turtle protection area, all as On October 10 and 23, 2002, the 223.206(d)(3)(i) by using restricted tow
defined in 50 CFR 222.102) to have a NMFS Southeast Regional times. A shrimp trawler utilizing this
NMFS-approved TED installed in each Administrator received requests from authorization must limit tow times to no
net that is rigged for fishing to provide the Secretary of the Louisiana more than 75 minutes measured from
for the escape of sea turtles. TEDs Department of Wildlife and Fisheries the time trawl doors enter the water
currently approved by NMFS include (LADWF) and the Director of the until they are retrieved from the water.
single-grid hard TEDs and hooped hard Alabama Department of Conservation The ALDCNR and LADWF are
TEDs conforming to a generic and Natural Resources’ (ALDCNR) continuing to monitor the situation and
description, two types of special hard Marine Resources Division, will cooperate with NMFS in
TEDs (the flounder TED and the Jones respectively, to allow the use of tow determining the ongoing extent of the
TED), and one type of soft TED (the times as an alternative to turtle excluder debris problem in these areas. Moreover,
Parker soft TED). devices (TEDs) in state waters because the marine enforcement agencies of

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Federal Register / Vol. 67, No. 216 / Thursday, November 7, 2002 / Rules and Regulations 67795

these states have stated that they will direction to facilitate the exclusion of impracticable. The AA finds that
enforce the restricted tow times. debris. The use of the leatherback unusually high amounts of debris are
Ensuring compliance with tow time modification or the double cover flap creating special environmental
restrictions is critical to effective sea TED will also aid in debris exclusion. conditions that make trawling with
turtle protection, and the commitment All of these recommendations TED-equipped nets impracticable. The
from these agencies to enforce tow time represent legal configurations of TEDs AA has determined that the use of
restrictions is an important factor for shrimpers fishing in the affected limited tow times for the described area
enabling NMFS to issue this areas. This action does not authorize and time would not result in a
authorization. NMFS and the respective any other departure from the TED significant impact to sea turtles. Notice
state marine enforcement agencies will requirements, nor does it authorize use and opportunity to comment are
monitor the situation to ensure there is of any TED modified in such a manner impracticable in this instance because
adequate protection for sea turtles in that it no longer meets the requirements providing notice and comment would
these areas and to determine whether for any of the TEDs approved pursuant prevent the agency from providing relief
debris in these areas continues to make to 50 CFR 223.207. In particular, if TEDs soon enough to provide the intended
TED use impracticable. are installed in trawl nets, they may not benefit. The public was provided with
be sewn shut. notice and an opportunity to comment
Continued Use of TEDs
Alternative to Required Use of TEDs; on 50 CFR 223.206(d)(3)(ii) which
NMFS encourages shrimp trawlers in authorizes the use of this emergency
the affected areas to continue to use Termination
TEDs if possible, even though they are The AA, at any time, may modify the Pursuant to 5 U.S.C. 553(d)(3), for the
authorized under this action to use alternative conservation measures same reasons the AA determined that
restricted tow times. NMFS studies have through publication in the Federal there was good cause to waive prior
shown that the problem of clogging by Register, if necessary to ensure adequate notice and opportunity to comment, the
seagrass, algae or by other debris is not protection of endangered and threatened AA finds good cause to waive the 30–
unique to TED-equipped nets. When sea turtles. Under this procedure, the day delay in effective date. NMFS is
fishermen trawl in problem areas, they AA may modify the affected area or making the rule effective November 1,
may experience clogging with or impose any necessary additional or 2002 through December 2, 2002.
without TEDs. A particular concern of more stringent measures, including Since prior notice and an opportunity
fishermen, however, is that clogging in more restrictive tow times or for public comment are not required to
a TED-equipped net may hold open the synchronized tow times, if the AA be provided for this action by 5 U.S.C.
turtle escape opening and increase the determines that the alternative 553, or by any other law, the analytical
risk of shrimp loss. On the other hand, authorized by this temporary rule is not requirements of 5 U.S.C. 601 et seq. are
TEDs also help exclude certain types of sufficiently protecting turtles, as inapplicable.
debris and allow shrimpers to conduct evidenced by observed lethal takes of The AA prepared an Environmental
longer tows. turtles aboard shrimp trawlers, elevated
NMFS’ gear experts have provided Assessment (EA) for this rule. Copies of
sea turtle strandings, or insufficient the EA are available (see ADDRESSES).
several general operational compliance with the authorized
recommendations to fishermen to alternative. The AA may also terminate Dated: November 1, 2002.
maximize the debris exclusion ability of this authorization for these same Rebecca Lent,
TEDs that may allow some fishermen to reasons, or if compliance cannot be Deputy Assistant Administrator for
continue using TEDs without resorting monitored effectively, or if conditions Regulatory Programs, National Marine
to restricted tow times. To exclude do not make trawling with TEDs Fisheries Service.
debris, NMFS recommends the use of impracticable. A document will be [FR Doc. 02–28281 Filed 11–01–02; 4:23 pm]
hard TEDs made of either solid rod or published in the Federal Register BILLING CODE 3510–22–S
of hollow pipe that incorporate a bent announcing any additional sea turtle
angle at the escape opening, in a conservation measures or the
bottom-opening configuration. In termination of the tow time option in DEPARTMENT OF COMMERCE
addition, the installation angle of a hard the affected areas. This authorization
TED in the trawl extension is an National Oceanic and Atmospheric
will expire automatically on December
important performance element in Administration
2, 2002, unless it is explicitly extended
excluding debris from the trawl. High through another notification published
installation angles can result in debris 50 CFR Parts 222 and 223
in the Federal Register.
clogging the bars of the TED; NMFS [Docket No. 021030260–2260–01; I.D.
recommends an installation angle of Classification 102502A]
45°51′, relative to the normal horizontal This action has been determined to be
flow of water through the trawl, to RIN 0648–AQ52
not significant for purposes of Executive
optimize the TED’s ability to exclude Order 12866. Sea Turtle Conservation; Shrimp
turtles and debris. Furthermore, the use The AA has determined that this Trawling Requirements
of accelerator funnels, which are action is necessary to respond to an
allowable modifications to hard TEDs, is emergency situation to allow more AGENCY: National Marine Fisheries
not recommended in areas with heavy efficient fishing for shrimp, while Service (NMFS), National Oceanic and
amounts of debris or vegetation. Lastly, providing adequate protection for Atmospheric Administration (NOAA),
the webbing flap that is usually endangered and threatened sea turtles Commerce.
installed to cover the turtle escape pursuant to the ESA and applicable ACTION: Temporary rule; request for
opening may be modified to help regulations. comments.
exclude debris quickly: the webbing flap Pursuant to 5 U.S.C. 553(b)(B), the AA
can either be cut horizontally to shorten finds that there is good cause to waive SUMMARY: NMFS issues this temporary
it so that it does not overlap the frame prior notice and opportunity to action to allow the use of limited tow
of the TED or be slit in a fore-and-aft comment on this rule, because it is times by shrimp trawlers as an

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