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Federal Energy Regulatory Commission
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Agency for Healthcare Research and Quality
Centers for Disease Control and Prevention
Health Resources and Services Administration
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Environmental Protection Agency (EPA).
Direct final rule.
EPA is taking direct final action to approve revisions to the Virginia State Implementation Plan (SIP). The revisions consist of substantive and format changes to Virginia's general administrative provisions and definitions, reorganization and recodification of the general conformity requirements and provisions, recodification of Virginia's oxygenated gasoline regulation, and revisions to the list of technical documents which Virginia incorporates by reference into its air pollution control regulations. In this action, EPA is also correcting typographical errors and other errata currently found in the Identification of plan rule chart. EPA is approving these revisions in accordance with the requirements of the Clean Air Act.
This rule is effective on March 10, 2003 without further notice, unless EPA receives adverse written comment by February 6, 2003. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the
Written comments should be mailed to Harold A. Frankford, Mailcode 3AP20, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the documents relevant to this action are available for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103; and the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia, 23219.
Harold A. Frankford, (215) 814-2108, or by e-mail at frankford.harold@epa.gov. Please note that while questions may be posed via telephone and e-mail, formal comments must be submitted in writing, as indicated in the
Between April 30, 1997 and June 22, 1999, the Commonwealth of Virginia submitted a series of formal revisions to its SIP. These SIP revisions consist of the addition of general administrative provisions and definitions (9 VAC 5, Chapter 170) submitted by Virginia on February 18, 1998, substantive and format revisions submitted by Virginia on March 4, 1998 regarding its general administrative provisions and definitions (9 VAC 5, Chapters 10 and 20), a revision submitted by Virginia on April 20, 1998 which further reorganizes and recodifies the format of the Commonwealth's general conformity requirements (9 VAC 5, Chapter 160), a revision submitted by Virginia on April 30, 1997 which revises the format of Virginia's oxygenated gasoline regulation (2 VAC 5, Chapter 480), and a revision submitted by Virginia on June 22, 1999 which amends the list of documents which Virginia incorporates by reference (9 VAC 5, Chapter 20, Regulation 5-20-21).
On February 18, 1998 and March 4, 1998, Virginia submitted substantial revisions, both in terms of format and substance, to its general administrative provisions and definitions. Whereas Virginia's current SIP-approved administrative provisions are located in Part II of VR-120 or 9 VAC 5 Chapter 20, the revised structure splits these general administrative provisions into two major chapters—Chapter 20 (General Provisions) and Chapter 170 (Regulations for General Administration). The individual 9 VAC 5-170 Sections are organized below:
In the February 18, 1998 and March 4, 1998 submittals, Virginia also adds or revises the following definitions of terms:
In addition to the recodification, Virginia made substantive revisions to the following provisions when compared to the wording of the comparable SIP-approved provisions formerly located in 9 VAC 5, Chapter 20: 5-170-30, 5-170-60, 5-170-120, 5-170-150, 5-170-160, and 5-170-170. Virginia revised the wording of these provisions to clarify the intent of the rules, or to conform with the statutory provisions of the Virginia Air Pollution Control Law. Virginia has also revised several definitions found in Regulation 5-170-20, also to clarify the intent of the term, or in order to conform with the wording and intent of the state statute. Virginia revised the definition of the term “volatile organic compound” to add perchloroethylene as an exempt VOC solvent, and substantively revised the wording of the definition of “person” when compared to that of the SIP-approved definition.
On April 20, 1998, Virginia revised its SIP-approved General Conformity rules (9 VAC 5 Chapter 160) which had been incorporated into the Virginia SIP at 40 CFR Section 52.2420(c)(118). These rules are revised by:
1. Revising 9 VAC 5-160-10 (General), Section B.
2. Revising the definition of “Emergency”, as defined in 9 VAC 5-160-20.
3. Removing definitions and provisions from Chapter 160 which are now duplicated in Chapter 170. The definitions are for the terms Administrative Process Act, Confidential Information, Consent Agreement, Consent Order, Emergency Special Order, Formal Hearing, Order, Party, Public Hearing, Special order, Variance, and Virginia Register Act. The provisions are: Enforcement of Regulations and Orders (9 VAC 5-160-60), and Availability of Information (9 VAC 5-160-100).
4. Removing from Chapter 160 the following additional provisions: Establishment of Regulations and Orders (9 VAC 5-160-50), Hearings and Proceedings (9 VAC 5-160-70), and Appeals (9 VAC 5-160-100).
On June 22, 1999, Virginia submitted revisions to the list of Federal, technical, and scientific documents which Virginia incorporates by reference. Virginia lists these documents in 9 VAC 5, Chapter 20 (General Provisions), Regulation 5-20-21. In this submittal, Virginia incorporates by reference the following technical and scientific documents:
1. D323-94, “Standard Test Method for Vapor Pressure of Petroleum Products (Reid Method)” from Section 5, Volume 05.01 of the 1989 Annual Book of American Society for Testing Materials (ASTM) Standards. (Replacing D323-82)
2. D97-93, “Standard Test Method for Pour Point of Premium Oils” from Section 5, Volume 05.01 of the 1989 Annual Book of ASTM Standards. (Replacing D97-87)
3. National Fire Prevention Association (NFPA) 385, Standard for Tank Vehicles for Flammable and Combustible Limits, 1990 Edition. (Replacing the 1985 Edition)
4. NFPA 30, Flammable and Combustible Liquids Code. 1993 Edition (Replacing the 1987 Edition).
5. NFPA 30A, Automotive and Marine Service Station Code, 1993 Edition (Replacing the 1987 Edition).
On April 30, 1997, Virginia submitted amendments to the Commonwealth's oxygenated gasoline regulations as a revision to the SIP. In a separate action, on February 17, 2000 (65 FR 8051), EPA had approved substantive revisions to Regulation 2 VAC 5-480-20 as a revision to the SIP. By this action, EPA is approving revisions to the SIP which recodify Virginia's oxygenated gasoline regulation from VR 115-04-28 Sections 1 and 3 through 8 to 2 VAC 5 Chapter 480, Regulations 2 VAC 5-480-10, and 5-480-30 through 5-480-80, respectively. These revisions are summarized in the following chart:
EPA has reviewed Virginia's new and revised definitions and has determined that they are consistent with the statutory provisions of the Virginia Air Pollution Control Law and the comparable requirements of the Clean Air Act and 40 CFR part 51. Virginia revised the wording of several definitions in order to improve their clarity and intent. Virginia also has substantially revised the definition of “Person” in order to comply with revisions to “Person” found in chapter 13, section 10.1.1300 of Virginia's Air Pollution Control Law. EPA has determined that the same groups covered by the current SIP definition of “Person” are still covered under the wording of the revised definition, and therefore concludes that the revised definition of “Person” is equivalent in scope to the current SIP definition. Virginia has also revised the definition of “Volatile Organic Compound” by including perchloroethylene to the list of exempt compounds. EPA has determined that Virginia's revised definition is consistent with the definition of “volatile organic compound” found at 40 CFR 51.100(s).
EPA has reviewed the revisions to the administrative regulations of 9 VAC 5, Chapter 170, and has determined that the revised wording improves the clarity and intent of the provisions, streamlines the process of enforcing regulations, permits and orders, and defines the procedures for determining the applicability of a provision where conflicts between provisions apply. The revised regulations strengthen the public hearing process which local agencies must follow, and provide additional assurances that local ordinances will conform with the applicable state requirements.
Virginia had amended its general conformity provisions so that the general and administrative provisions in 9 VAC 5 Chapter 160 would be combined with the identical provisions of 9 VAC 5, Chapter 170. Many of the definitions and administrative provisions in the SIP-approved version of 9 VAC 5, Chapter 160 make specific references to Federal agencies and their obligation to comply with state requirements. The comparative requirements of 9 VAC 5 Chapter 170 make no reference to Federal agencies. Instead, the term “Owner” is used in the place of “Federal Agencies”. However, the term “Owner” refers to “Person” which by definition includes “Governmental Bodies.” EPA has determined this to be an equivalent substitution for “Federal Agency.” In addition, the term “Owner” also refers to “Bodies Politic,” which EPA interprets to include the Federal Government and its individual agencies. The term “Department” found in the 9 VAC 5-160 provisions is not found in the consolidated 9 VAC 5-170 rules—only the term “Board.” The SIP, however, has historically only conferred power to the Board. In addition, 40 CFR part 93 does not require “Department” to be included in Virginia's general conformity rules.
In its support document accompanying the June 1999 SIP revision submittal, Virginia explained that the technical documents found in Regulation 9 VAC 5-20-21 are used to make technical evaluations related to new source review and emission standards for volatile organic compounds. Virginia revised the five documents listed above to reflect the latest available edition. EPA agrees that states should use the latest available technical documents to assist in their decisionmaking, and therefore finds these revisions to be acceptable.
The revisions to 2 VAC 5, Chapter 480, sections 2-480-10 and 2-480-30 through 2-480-80 consist only of changes to the citation format of Virginia's oxygenated gasoline rules. There are no substantive wording changes to the current SIP-approved provisions.
In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information: (1) That are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.
On January 12, 1997, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege Law, Va. Code sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. . . .” The opinion concludes that “[r]egarding section 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”
Virginia's Immunity Law, Va. Code sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1997 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”
Therefore, EPA has determined that Virginia's Privilege and Immunity
On April 21, 2000 (65 FR 21513), EPA approved the revised incorporation by reference format for 40 CFR part 52, subpart VV, § 52.2420(c). This chart lists those Virginia regulations which EPA has incorporated by reference into the Virginia SIP as well as their effective dates in the Commonwealth. After review of the chart as published in the April 21, 2000
Similarly, on October 19, 2000 (65 FR 62626), EPA approved a revision to 9 VAC 5 Chapter 30 (Ambient Air Quality Standards). This revision removed section 9 VAC 5-30-20, the old ambient air quality standards for total suspended particulate matter (TSP) from the Virginia SIP. The intent of this action was to remove the entry for section 9 VAC 5-30-20 from the chart in 40 CFR 52.2420(c). This action will remove section 9 VAC 5-30-20 from the chart.
EPA is approving the addition of 9 VAC 5, Chapter 170, as well as the revisions to 9 VAC 5 Chapters 10, 20, and 160 and 2 VAC 5, Chapter 480 as revisions to the Virginia SIP. EPA is also correcting the typographical errors, omissions and incorrect information found in the chart of previously-approved SIP actions found at 40 CFR 52.2420(c).
EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's
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
The Congressional Review Act, 5 U.S.C. 801
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 March 10, 2003. 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 revise 9 VAC 5 chapters 10, 20, 30, 40, 80, 91, 160 and 170, and 2 VAC 5 chapter 480 may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
(c) * * *
3. Section 52.2423 is revised by adding paragraph (r) to read as follows:
(r) EPA approves as part of the Virginia State Implementation Plan the revised references to the documents listed in Chapter 20, Section 9 VAC 5-20-21 (formerly Appendix M), Sections E.4.a.(1), E.4.a.(2), and E.7.a.(1) through E.7.a.(3), of the Virginia Regulations for the Control and Abatement of Air Pollution submitted by the Virginia Department of Environmental Quality on June 22, 1999.
Federal Communications Commission.
Final rule.
In this document the Commission adopts a new broadcast Equal Employment Opportunity (EEO) rule in response to the decision of the U.S. Court of Appeals for the District of Columbia Circuit in
Effective March 10, 2003.
Lewis Pulley, Media Bureau, (202) 418-1456 or via e-mail at
This is a summary of the Media Bureau's
1. In this
2. We have administered regulations governing the EEO responsibilities of broadcast licensees since 1969, and of cable television operators since 1972. Our responsibilities in this area were codified with respect to cable television operators in 1984. They were further codified with respect to television broadcast licensees and extended to other MVPDs in 1992. In 1998, the U.S. Court of Appeals for the District of Columbia Circuit held that the Commission's EEO program requirements for broadcasters were unconstitutional in
3. In 1998, we issued a
4. The new rule contained two primary requirements—a prohibition on discrimination based on race, color, religion, national origin or gender in hiring, and a requirement that broadcasters reach out in recruiting new employees to ensure that all qualified individuals had an opportunity to apply for and be considered as job candidates. The core of the recruitment requirement was that broadcasters widely disseminate information concerning all job vacancies. The Commission concluded that this basic requirement “is essential to meaningful outreach.” The Commission left it largely to broadcasters' discretion concerning how they would fulfill this requirement, so long as their procedures were sufficient to ensure wide dissemination of information about all job openings to the entire community.
5. In addition to the basic requirement of wide dissemination of information concerning job openings, the new rule provided broadcast licensees with two recruitment options. Under “Option A,” they were required to undertake two types of supplemental recruitment measures. The first measure required licensees to provide notification of job vacancies to any recruitment organization that requested such notice from the broadcaster. The second supplemental measure under Option A required broadcasters to participate in additional recruitment activities beyond the traditional recruitment that occurs with individual vacancies. These additional measures were to be selected from an open-ended menu of types of activities that included: Job fairs, job banks, scholarship programs, and community events related to employment opportunities in the industry, among others. Broadcasters were permitted to comply with the supplemental requirement by participating in activities other than the listed ones so long as they were designed to disseminate information about employment opportunities to candidates who might otherwise not learn of them. Broadcasters who selected Option A were required to maintain, but not routinely submit to the Commission, records documenting their compliance with the wide dissemination and supplemental recruitment requirements.
6. The Commission also adopted an “Option B” for recruitment that permitted licensees to forego the supplemental recruitment measures required under Option A and to design their own outreach program to suit their needs, as long as they could demonstrate that their program is inclusive, i.e., that it widely disseminated job vacancies throughout the local community. The court held, however, that Option B was unconstitutional under the equal protection component of the Due Process Clause of the Fifth Amendment. The Commission filed for hearing and rehearing
7. We issued the
8. In this order, we adopt new outreach requirements applicable to broadcast and MVPDs. We are also retaining the nondiscrimination rules applicable to broadcasters and MVPDs.
9. The following is a summary of the three-pronged outreach requirement we are adopting as it relates to broadcasters:
Prong 1: Widely disseminate information concerning each full-time (30 hours or more) job vacancy, except for vacancies filled in exigent circumstances;
Prong 2: Provide notice of each full-time job vacancy to recruitment organizations that have requested such notice; and
Prong 3: Complete two (for broadcast employment units with five to ten full-
The following is a summary of recordkeeping and reporting requirements:
(a) Collect, but not routinely submit to the Commission: (i) Listings of all full-time job vacancies filled by the station employment unit, identified by job title; (ii) for each such vacancy, the recruitment sources used to fill the vacancy (including, if applicable, organizations entitled to notification, which should be separately identified), identified by name, address, contact person and telephone number; (iii) dated copies of all advertisements, bulletins, letters, faxes, e-mails, or other communications announcing vacancies; and (iv) documentation necessary to demonstrate performance of the Prong 3 menu options,
(b) Place in the station public file annually a report including the following: (i) A list of all full-time vacancies filled during the preceding year, identified by job title; (ii) recruitment source(s) used to fill those vacancies (including organizations entitled to notification of vacancies pursuant to Prong 2), including the address, contact person, and telephone number of each source; (iii) a list of the recruitment sources that referred the people hired for each full-time vacancy; (iv) data reflecting the total number of persons interviewed for full-time vacancies during the preceding year and the total number of interviewees referred by each recruitment source; and (v) a list and brief description of Prong 3 menu options implemented during the preceding year.
(c) Submit the station's EEO public file report to the Commission as part of the renewal application and midway through the license term for the Commission's mid-term review for those stations subject to mid-term review (television stations with five or more full-time employees and radio stations with more than ten full-time employees). EEO public file reports for the preceding two year period will be required because broadcasters have two years in which to complete the Prong 3 menu options. Broadcasters must also post the current EEO public file report on their web site, if they have one.
10. The same requirements will apply to MVPDs, except as necessary to comply with different statutory requirements. The Commission is also required to certify that MVPD employment units are in compliance with the EEO requirements on an annual basis. To comply with the Prong 3 requirements, MVPD employment units with six to ten full-time employees and employment units located in smaller markets will be required to undertake one recruitment initiative each year and larger employment units located in larger markets two recruitment initiatives per year. MVPD employment units are not subject to a renewal process at the Commission. Pursuant to section 634(e)(2) of the Communications Act, the Commission is required to conduct a more thorough review of each cable employment unit's EEO compliance every five years. Hence, MVPDs with six or more full-time employees will submit a copy of their most recent EEO public inspection file report to the Commission every five years.
11. The Commission has implemented the MVPD annual reporting requirement under section 634 by FCC Forms 395-A (cable operators) and 395-M (other MVPDs). We will create a new Form 396-C for all MVPDs that will encompass the same information concerning the unit's EEO outreach efforts that was formerly required in FCC Forms 395-A and 395-M. The prior forms were also used to collect data concerning the race/ethnicity and gender of the unit's workforce. The form we are adopting today will not encompass such data because, as indicated below, we will defer action on the collection of workforce data.
12. We are not acting at this time on issues raised in the
13. The Commission is explicitly authorized by section 634 of the Communications Act to adopt and enforce the MVPD EEO rules. Indeed, section 634 requires us to enforce EEO rules for MVPDs.
14. Although the Commission is required by section 634 to enforce EEO ruless for the MVPD industry, Congress built into section 634 flexibility by allowing the Commission to implement MVPD EEO rules by rulemaking rather than simply prescribing MVPD EEO requirements by statute; by stating in section 634(d)(2) that the “rules shall specify the terms under which” an entity shall take the actions specified in that section; and by providing in section 634(d)(4) that the Commission may amend the MVPD EEO rules “from time to time to the extent necessary to carry out the provisions of this section.” Our rulemaking authority, particularly under sections 634(d)(2) and 634(d)(4), permits us to adopt new, race-neutral outreach requirements and to revise the FCC Forms filed by MVPDs to make them consistent with our modified broadcast EEO rules.
15. Section 634(d)(2) obligates the Commission to implement the listed requirements only “to the extent possible,” consistent with other conflicting requirements or limitations. The court's decision in
16. In 1992, Congress enacted section 334 of the Communications Act as part of the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. 192-385, 106 Stat. 1460 (“1992
(1) The regulations concerning equal employment opportunity as in effect on September 1, 1992 (47 CFR 73.2080) as such regulations apply to television broadcast station licensees and permittees; or
(2) The forms used by such licensees and permittees to report pertinent employment data to the Commission, 47 U.S.C. 334(a).
The Conference Report accompanying this legislation indicates that section 334 “codifies the Commission's equal employment opportunity rules, 47 CFR 73.2080” for television licensees and permittees. Section 334 thus grants the Commission explicit authority to regulate the EEO practices of television broadcasters. Section 334 was enacted as part of section 22 of the 1992 Cable Act, which sets forth Congressional findings that, despite existing FCC EEO rules, there were few women and minorities in managerial positions in the MVPD and broadcast industries; that increased employment of women and minorities in managerial positions will advance the national policy favoring diversity of viewpoints in the electronic media; and that rigorous enforcement of EEO rules is required to effectively deter racial and gender discrimination.
17. The Commission has maintained nondiscrimination and EEO program requirements for broadcasters for more than 30 years. In 1968, the Commission concluded that the national policy against discrimination and the fact that broadcasters are licensed under the Communications Act to operate in the public interest required the Commission to consider allegations of employment discrimination in licensing broadcast stations. In 1969, the Commission adopted rules prohibiting broadcast stations from discriminating against any person in employment on the basis of race, color, religion, or national origin, and requiring stations to maintain a program designed to ensure equal opportunity in every aspect of station employment. It reiterated its view that discriminatory employment practices are incompatible with a station's obligation to operate in the public interest, and relied on sections 4(i), 303, 307, 308, 309 and 310 in adopting the new rules. Relying on its authority to license and regulate broadcasters in the public interest, the Commission has revised and extended its rules on numerous occasions since 1969 to,
18. Over the last 30 years, the Commission has vigorously enforced its EEO requirements, sanctioning broadcast licensees in numerous cases for failing to comply fully with those requirements. Commission decisions enforcing the EEO requirements have been challenged both by licensees who have been sanctioned for noncompliance and by petitioners who believed that Commission enforcement was not vigorous enough. Indeed, the Court of Appeals for the DC Circuit held more than 20 years ago that the Commission must investigate broadcasters' employment practices and, in assessing the character qualifications of broadcast licensees, consider whether they have engaged in intentional employment discrimination. And the Supreme Court observed in the seminal case addressing the scope of an agency's authority to serve the “public interest” that FCC regulation of the employment practices of its licensees “can be justified as necessary to enable the FCC to satisfy its obligation under the Communications Act of 1934 * * * to ensure that its licensees' programming fairly reflects the tastes and viewpoints of minority groups.”
19. During the three decades that the Commission has administered EEO program requirements and nondiscrimination rules, Congress has repeatedly expressed awareness of the rules and has not only acquiesced in them, but has also referred to them approvingly, confirming our view that the Commission has statutory authority to promulgate these rules. Congress has ratified the Commission's authority to adopt and enforce EEO requirements against broadcasters under its statutory mandate to license and regulate broadcasters in the public interest.
20. In 1984, Congress enacted section 634 of the Communications Act as part of the Cable Communications Policy Act of 1984, Pub. L. 98-549, 98 Stat. 2779 (“1984 Cable Act”). Although the Commission at that time already had rules in place regulating the EEO practices of cable operators as well as broadcasters, section 634 was intended to “codif[y] and strengthen[] the Commission's existing equal employment opportunity regulations.” Section 634 granted the Commission broad authority to adopt rules banning employment discrimination by cable operators and requiring cable operators to “establish, maintain, and execute a positive continuing program of specific practices designed to ensure equal opportunity in every aspect of its employment policies and practices * * *.”
21. The legislative history of section 634 makes it unmistakably clear that Congress believed that the Commission already possessed authority to regulate the EEO practices of mass media entities—broadcast as well as cable. The House Commerce Committee Report on the bill proposing the provisions on which section 634 was based explicitly confirmed the Commission's authority to adopt EEO rules. The House Commerce Committee stated:
(1)
(2) Because of the potentially large impact cable programming and other services provided by the cable industry has on the public, the employment practices of the industry have an importance greater than that suggested by the number of its employees. The committee strongly believes that equal employment requirements are particularly important in the mass media area where employment is a critical means of assuring that program service will be responsive to a public consisting of a diverse array of population groups.
22. In addition to the explicit recognition of the Commission's broad and “well established” authority to regulate employment practices in the communications industry, the legislative history of section 634 shows that Congress viewed the legislation as codifying, strengthening and building upon the Commission's pre-existing regulatory scheme, which it viewed as well within the Commission's statutory authority.
23. Additional evidence of congressional ratification can be found in the Cable Television Consumer Protection and Competition Act of 1992, which further strengthened the cable EEO requirements, extended those requirements to all MVPDs, and codified the Commission's EEO program and nondiscrimination requirements as applied to broadcast television licensees. Congress once again explicitly acknowledged the existence of the Commission's broadcast and cable EEO requirements and proclaimed that vigorous enforcement of those rules served the public interest. Congress made the following findings in section 22(a) of the 1992 Cable Act:
(1) Despite the existence of regulations governing equal employment opportunity,
(2) Increased numbers of females and minorities in positions of management authority in the cable and broadcast television industries advances the Nation's policy favoring diversity in the expression of views in the electronic media; and
(3) Rigorous enforcement of equal employment opportunity rules and regulations is required in order to effectively deter racial and gender discrimination.
By extending the cable EEO requirements to every entity that provides multiple channels of video programming, such as MMDS operators and DBS licensees, Congress was building upon and closing the gaps in the Commission's regulatory scheme, ensuring that every electronic mass media provider would be subject to EEO regulations enforced by the Commission.
24. The 1992 Cable Act not only strengthened and extended the cable EEO requirements, it also codified the Commission's EEO requirements for broadcast television stations in section 334 of the Act. Section 334 thus explicitly recognizes the existence of the Commission's broadcast EEO rule and requires the Commission to keep its EEO requirements in effect for television broadcasters.
25. Section 22(g) of the 1992 Cable Act required the Commission to report to Congress within two years on “the effectiveness of [the Commission's] procedures, regulations, policies, standards, and guidelines in promoting the congressional policy favoring increased employment opportunity for women and minorities in positions of management authority.” The Commission was required to include in that report “such legislative recommendations to improve equal employment opportunity in the broadcasting and cable industries as it deems necessary.” Congress would not have directed the Commission to review the effectiveness of its broadcast and cable EEO policies and regulations then in effect, and recommend whether further legislative action was necessary, had Congress not believed that those policies and regulations were within the Commission's lawful authority. Section 22(g) is further evidence of Congress's affirmative approval of the Commission's authority to adopt equal employment opportunity requirements for broadcasters.
26. There is another compelling reason to find in the current statutory context that Congress has ratified our authority to regulate the EEO practices of broadcasters. The Supreme Court has held on numerous occasions that courts should interpret a statute “as a symmetrical and coherent regulatory scheme” and “fit, if possible, all parts into an harmonious whole.” In interpreting statutes granting administrative or judicial jurisdiction, the Supreme Court has held specifically that any interpretation of congressional intent that will result in a “bizarre jurisdictional patchwork” is to be disfavored absent legislative history or a persuasive functional argument to the contrary. In this case, Congress has explicitly granted the Commission authority to regulate the EEO practices of television broadcasters, cable operators, and all other MVPDs, including such relative newcomers as DBS and MMDS operators. Thus, rejecting the inference of congressional ratification would leave us in the anomalous situation of having jurisdiction to regulate the EEO practices of broadcast television and MVPDs, but not radio broadcasters. There is no indication in the legislative history that this was Congress's intent and none of the broadcasters commenting in this proceeding even attempts to explain why Congress would have intended such a result.
27. The Commission since 1969 has interpreted the Communications Act's grant of authority to license and regulate broadcasters as the public interest, convenience and necessity require as authorizing the Commission to regulate the equal employment practices of broadcasters. Specifically, it has interpreted the statute as granting it authority to prohibit broadcast stations from engaging in employment discrimination and to require them to maintain programs designed to ensure equal opportunity in all aspects of station employment, including recruitment. It is that interpretation of the scope of the Commission's statutory authority under the Communications Act that Congress has ratified over the course of many years.
28. In the
29. As proposed in the
30. The rule adopted by the
31. Several broadcast commenters have challenged the basis for our adopting any EEO rule for broadcasters. Initially, they seek to characterize our proposals in the
32. First, our concern is not limited to intentional discrimination. It is not based on Constitutional provisions or on Title VII, but on the public interest standard in the Communications Act. In adopting the Cable TelevisionConsumer Protection and Competition Act of 1992 (“Cable Act”), Congress expressly found in pertinent part: “Rigorous enforcement of equal employment opportunity rules and regulations is required in order to effectively deter racial and gender discrimination.” Congress has made it clear that the public interest standard is sufficiently broad to cover not only intentional discrimination, but also discrimination that may arise as a result of practices and policies that are not intentionally discriminatory. Further, our policy is not limited to imposing sanctions in response to specific past discrimination; it is also intended to deter discrimination in the first instance. Our policy is designed to prevent both intentional and unintentional discriminatory practices in the broadcast and MVPD industries, and to ensure equal opportunity in employment practices, including recruitment.
33. Second, it is not necessary to find that the broadcast industry “as a whole” has engaged in discrimination in order to justify regulations to prevent discrimination. We do not suspect that the entire broadcast industry, or even most of it, engages in intentional or unintentional discrimination.
34. Third, although we commend the broadcast associations for the various activities detailed in their comments, they do not demonstrate that an EEO rule is unnecessary.
35. Some broadcasters support the adoption of an EEO rule. Our proposed EEO requirements also are generally supported by the MVPD industry.
36. Discrimination may be easy to hide and difficult to prove. Allegations of discrimination may never be fully litigated because a violator will elect to settle any litigation before it reaches the stage of a final judgment. It is thus impossible to quantify reliably the extent of actual discrimination that exists today.
37. Many of the opponents of our EEO program cite language from the
38. We accordingly conclude that adoption of new outreach rules for broadcast and MVPDs is supported by the record in this case. The evidence in this proceeding demonstrates an ongoing need to deter discrimination and ensure equal employment opportunity in the broadcasting and MVPD industries. Moreover, Congress has made clear its intention that we should enact EEO rules for the broadcast and MVPD industries.
39. Finally, as noted, our primary goal in adopting EEO program requirements is to ensure broad outreach in recruitment for broadcast and MVPD employment vacancies. We seek to do so in a manner that affords some flexibility to affected industries. The regulations we are adopting today provide sufficient flexibility. Entities will have broad discretion as to the type of recruitment sources they will use, the number of recruitment sources they will use, and the Prong 3 menu options they will implement. We are also providing that entities in smaller markets may implement fewer menu options than those in larger markets.
ii.
40. In the
41.
42. The effectiveness of our requirements in the past does not justify eliminating them now. Nor can we justify such a conclusion based on recent outreach efforts by the broadcast industry commendable, given that this has been an area under high scrutiny for some time. We can draw no inference from these facts; therefore, regarding the likely behavior of licensees in the absence of any current on proposed EEO program. Second, our requirements provide sufficient flexibility to design recruitment programs appropriate for different positions and circumstances.
43. In the
44. The requirement that broadcasters recruit for every full-time vacancy, unless exigent circumstances exist, will become a component of our rule. Recruitment for only some openings could leave the most desirable positions open to a limited number of potential applicants, possibly excluding significant segments of the community. We will require that broadcasters develop and use for each vacancy a recruitment source or list of recruitment sources (which may be freely modified as circumstances warrant) sufficient to ensure wide dissemination of information about the opening. We will not dictate the number or type of sources that a broadcaster must use. If, however, the source or sources used cannot reasonably be expected,
45. With reference to the definition of community for purposes of the broad outreach requirement, we proposed in the
46. We require only that EEO recruitment sources be reasonably calculated to reach the entire community. We do not require that broadcasters demonstrate that any particular segment of the community actually was aware of any vacancy. Nor do we require that recruitment be targeted to a specific segment or that broadcasters prove that they obtained a response from a particular segment. Prong 1 neither requires nor precludes the use of any number or type of sources a broadcaster deems appropriate to achieve broad outreach. Further, we leave the definition of “community” to the licensee's good faith discretion. We also recognize that it is difficult for licensees to recruit for vacancies in exigent circumstances. Thus, Prong 1 allows broadcasters flexibility in implementing appropriate recruitment programs for their individual circumstances.
47. Notwithstanding the greater availability of job-related Internet sites, the record does not reflect the extent to which the Internet has become well known as a principal resource for job seekers or the nature of any difficulties that Internet recruitment would create. We anticipated in the
48. With regard to the access of minority and rural populations to the Internet, our concerns arose from a series of reports by the National Telecommunications and Information Administration (“NTIA”) in 1995, 1998 and 1999.
49. Proponents of the use of the Internet as a sole recruitment source cite the improvements reflected in NTIA's 2002 report. Although the NTIA 2002 report shows increases in Internet usage, the report also indicates continuing disparities in usage among different segments of society. Indeed, only about half of all U.S. households had Internet service as of September 2001, and only slightly more than half of individuals used the Internet from any location. We are unable to conclude that Internet usage has become sufficiently widespread to justify allowing it to be used as the sole recruitment source. As we indicated in the
50. As indicated in the
51. We will continue our policy stated in the
52. We will not require recruitment for internal promotions, nor will we require recruitment for temporary employees. Typically, we view temporary employees as including those hired as emergency replacements for absent regular employees or those hired to perform a particular job for a limited period of time. If a person is hired full-time to perform a regular station function for an extended period of time (
53. We will continue to define “full-time employee” as a permanent employee whose regular work schedule is thirty hours or more per week. In the
54.
55. We will provide broadcasters discretion to determine the method of providing notice to requesting parties. Such methods may include electronic mail and facsimile which may require fewer personnel and financial resources to fulfill the notification requirement than more traditional methods. For example, a broadcaster may maintain an electronic list of recruitment sources and notify all the sources simultaneously with a single e-mail when a vacancy occurs. We will also allow notifications to be made as part of joint recruitment efforts among broadcasters. However, each broadcaster participating in the joint recruitment efforts remains individually responsible for ensuring that requested notifications relating to its employment unit are made. For example, a state broadcast association may have a job bank that notifies certain sources on behalf of an employment unit when a vacancy becomes available at that employment unit. As long as the state broadcast association notifies all organizations requesting vacancy announcements from that employment unit as part of this process, the employment unit itself need not do so. Therefore, given the flexibility provided by electronic forms of notice and joint recruitment, we expect that the notification requirement will place minimal burdens on broadcasters.
56. An organization that wishes to be notified of vacancies need only notify a broadcaster once in order to be entitled to notification of all future full-time vacancies. If a broadcaster is uncertain as to the status or continuing interest of a particular group, it is free to contact the group to resolve any questions. So long as the group indicates its continued interest in receiving notifications, it is entitled to receive them.
57. The obligation to notify recruitment sources that request notice of vacancies is intended as a supplement to, not a substitute for, broadcasters' core, non-delegable obligation to widely disseminate information concerning all job vacancies. Although recruitment sources will have the right to ask broadcasters for notices of vacancies, they have no obligation to do so. And even if a broadcaster does not receive a single request for notice of vacancy information, it will nevertheless be responsible for ensuring that notice of vacancies is widely disseminated. If it fails to do so, it is not a legitimate excuse that no recruitment organizations requested notices.
58. Prong 2 of the EEO rule requires broadcasters and MVPDs to provide requested notification of full-time job vacancies to organizations involved in assisting job seekers, regardless of whether they are minority or women's organizations.
59.
60. The first three specific menu options include participation in at least four job fairs by station personnel who have substantial responsibility for hiring decisions; hosting at least one job fair; or co-sponsoring at least one job fair with an organization in the business and professional community whose membership includes substantial participation of women and minorities. Job fairs are a useful method to reach a broad range of individuals who are interested in employment in the industry. The fourth option is participation in at least four activities sponsored by community groups active in broadcast employment issues, including conventions, career days, workshops and similar activities. The fifth option is the establishment of an internship program designed to assist members of the community to acquire skills needed for broadcast employment. Such an endeavor would serve the goal of broad outreach by increasing the number of qualified potential employees not only for one broadcaster, but for all broadcasters in the area. The sixth option is participation in general (as opposed to vacancy-specific) outreach efforts by such means as job banks or Internet programs such as those described in the model program developed by NASBA. While such sources may be used as recruitment sources when specific vacancies occur, they can also be useful even when there is no specific vacancy to elicit interest from persons who may later be considered for a specific position. The seventh option is participation in scholarship programs directed to students desiring to pursue a career in broadcasting. The benefit of this outreach is that it attracts students of both genders and all races to careers in broadcasting, ultimately increasing the number of qualified potential employees. The eighth and ninth options are, respectively, the establishment of training and mentoring programs designed to enable station personnel to acquire skills that could qualify them for higher level positions. These options would not be satisfied by ordinary training required for employees to perform their current positions. These options are rather intended to increase employee skills so they can qualify for higher positions.
61. The tenth option is participation in at least four events or programs relating to career opportunities in broadcasting sponsored by educational institutions. Such participation again serves the purpose of increasing the universe of potential employees from which broadcasters attract job applicants. The eleventh option includes sponsorship of at least two events in the community designed to inform the public as to employment opportunities in broadcasting. Such activities can serve to increase public awareness of the opportunities available in broadcasting. The twelfth option would entail listing each upper-level opening in a job bank or newsletter of a media trade group with a broad-based membership, including participation of women and minorities.
62. The thirteenth option will consist of providing assistance to outside non-profit entities in the maintenance of web sites that provide counseling on the process of searching for broadcast employment and/or other career development assistance pertinent to broadcasting. The fourteenth option consists of providing training to management level personnel as to methods of ensuring equal employment opportunity and preventing discrimination. The fifteenth option consists of providing training to personnel of outside recruitment organizations that would enable them to better refer job candidates for broadcast positions.
63. The sixteenth option (which was the thirteenth option in our former rule) includes participation in activities other than the fifteen listed options that the licensee has designed to further the goal of disseminating information about employment opportunities in broadcasting to job candidates who might otherwise be unaware of such opportunities. This will provide flexibility for worthwhile initiatives that broadcasters may develop but that are not strictly within the scope of the menu options we have specified. The inclusion of this option makes it clear that the list of menu options is an open-ended list intended to guide, rather than limit, broadcasters and MVPDs.
64. In the
65. We will also permit broadcasters to perform menu options on a joint basis, either with other broadcasters, organizations such as state broadcaster associations, or with a corporate licensee's corporate headquarters. A station seeking credit for a particular menu option performed on a joint basis must have a meaningful involvement in the activity for which credit is sought. It is not sufficient for the station merely to lend its name to an activity or provide money where the activity is otherwise entirely conducted by another entity such as a trade association or the licensee's corporate headquarters. In the
66. We note that the term “sponsor” as used in connection with several options set forth in § 73.2080(c)(2) of the old rule, which we also use in our new rule, was apparently misunderstood by some as referring only to a financial contribution. Our intent for the purpose of these options is that a “sponsor” should have a meaningful input into the planning and implementation of a specified event. Simply lending one's name or making a monetary contribution would not be sufficient. Events can be jointly sponsored, so long as each broadcaster seeking credit for sponsoring the event is actively involved in planning and implementing the event.
67. With respect to the maintenance of a scholarship program by a corporate licensee, it is reasonable for a corporate licensee to maintain a scholarship program for those employment units it owns. Any such scholarship program should incorporate involvement by the employment units for which credit will be claimed in such areas as the design of the program, the solicitation of prospective scholarship recipients, the interviewing and selection of scholarship recipients, on-air promotion of the program, and evaluation of the effectiveness of the program. While each
68. Unrelated broadcasters may also jointly maintain a scholarship program, which could be done through a state or local broadcast association, including efforts by such associations to coordinate regional efforts. We believe that the program should incorporate meaningful involvement by each broadcaster seeking credit for the initiative in such areas as the design of the program, the solicitation of prospective scholarship recipients, the interviewing and selection of scholarship recipients, on-air promotion of the program, and evaluation of the effectiveness of the program. As in the case of corporate scholarship programs, the number or type of scholarships awarded by the joint scholarship program would have to bear a reasonable relationship to the number of employment units seeking credit for it.
69. With respect to mentoring, internships, or training programs administered by a corporate licensee, employment units of the licensee could claim credit for such a program even if not implemented in the community where the employment unit is located, but only so long as personnel from the employment units are participants in the mentoring, internships or training program. Similar questions arose under our former rule as to job fairs hosted by a corporate licensee. We would credit individual employment units with cohosting the job fair only to the extent that personnel from the unit were involved in planning and implementing the job fair. Employment units of the licensee could be credited with attendance at the job fair, but only if personnel from the employment unit with substantial responsibility in making hiring decisions at the unit in fact participated in the job fair. Although the corporate headquarters can assist in the implementation of menu options, personnel from the respective employment units must also be involved in implementation should they seek credit for participation.
70. The EEO rules adopted by the
71.
72.
73.
74. We also sought comments in the
75. Our rule focuses on the process of recruitment, not the results thereof. It is nonetheless necessary to have some means of assessing whether the process has been conducted in good faith and whether the process is working as intended. We expect that broadcasters and MVPDs will analyze the results of their recruitment efforts to ensure that they actually achieve broad outreach. This requires knowledge of what recruitment sources have been productive in generating qualified applicants. Records of the recruitment sources of the most qualified applicants—those interviewed or hired—will be helpful in this regard. We will accordingly require that broadcasters and MVPDs maintain records reflecting the referral sources of interviewees and hires.
76. We will not require the retention of records of the recruitment sources of applicants. Data concerning the recruitment sources of interviewees and hires is sufficient for the limited purpose of determining whether the program is being conducted in good faith and working as intended. Further, although it is minimally burdensome to ascertain the recruitment sources of interviewees and hires because they are readily available to provide this information if it is not reflected in the jobseeker's application, tracking the recruitment source of all applicants may require additional efforts to collect this information. This may place an inordinate burden on broadcasters and MVPDs, particularly in light of the fact that information concerning applicants in the aggregate does not necessarily reflect sources of qualified applicants.
77. We will require that all records documenting outreach efforts be retained until the grant of the renewal application covering the license term during which the hire or activity occurs, except that, if a licensee acquired a station pursuant to an assignment or transfer that required Commission approval of FCC Form 314 or 315 during the license term, it need not retain records pertaining to the outreach efforts of a prior licensee. In order to minimize any burden associated with this requirement, records may be maintained in an electronic format,
78. In the case of religious broadcasters that apply a religious qualification to some or all of their hires, they need only retain, in the case of hires subject to the qualification, documentation as to the full-time vacancies filled, the recruitment sources used, the date each vacancy was filled, and the recruitment sources of the hires. This information is pertinent to monitoring whether the broadcaster made reasonable, good faith efforts to recruit among persons who meet the applicable religious qualification.
79.
80. Some broadcasters object that documentation concerning a station's EEO efforts should not be made available to the public. To the contrary, as we indicated in the
81. We will also require that broadcasters post the EEO public file report on their web site, if they have one. (Although the reports must be retained in the public file until final action has been taken on the station's next renewal application, all reports need not be maintained on the station's Web site. The requirement to post a station's EEO public file report on its Web site extends only to the current report. Also, we require only that the information contained in the EEO public file report be placed on the Web site. A scanned copy of the actual paper report contained in the public file need not be placed on the Web site; any legible format may be used.) The purpose of this requirement is to facilitate access by persons within the service area. We do not believe that our requirement to place EEO public file report information on a station's Web site is unreasonable or overly burdensome.
82. Broadcasters are free to use any format in their public file report to avoid unnecessary duplication as long as the report clearly provides the information requested. For instance, if a broadcaster used the same recruitment sources for all its vacancies, it may maintain a single list of those sources, indicating that they were used for all vacancies. If a broadcaster used different sources for different vacancies, it may maintain a master list of all its sources and use a cross-reference system to show which sources were used for which vacancies.
83. The EEO public file report need not be routinely submitted to the Commission, except in two instances. The EEO public file reports covering the two-year period preceding the filing of a renewal application must be submitted with that application as an attachment to Form 396, and will be one basis for our review of the broadcaster's compliance at renewal time. Also, for stations subject to mid-term reviews, the EEO public file reports for the two-year period preceding the mid-term review must be filed with the Commission and will be one basis for mid-term reviews. Renewal and mid-term review procedures are discussed in greater detail.
84. Because the filing dates for the EEO public file reports are tied to the date of filing of renewal applications, the due dates will apply to a given station regardless of when the licensee acquired the station. Consequently, if there is a substantial change of ownership requiring approval pursuant to FCC Form 314 or FCC Form 315 during the one-year period covered by an EEO public file report, the new licensee must place the report in the public file by the due date. The information contained in the report would encompass only EEO efforts undertaken by the new licensee.
85. The EEO public file report will be filed for station employment units, rather than only for individual stations. A “station employment unit” will be defined, as it was under our former rule, as including a station or group of commonly owned stations in the same market that shared at least one employee. We will leave the definition of the “market” to each licensee's good faith discretion. In making this determination a licensee should assess the technical coverage of its station(s); its marketing, promotional, and advertising practices; the pertinent market definitions adopted by public agencies or commercial services, such as Nielsen and Arbitron; and requests for notices of job vacancies from locally-based community groups. We expect a licensee to be able to provide a reasonable explanation for its determination should it become an issue. Finally, stations in the same market should be considered part of the same employment unit even if the licenses are held by different business entities that are commonly owned or controlled. We would view licensees as commonly owned for the purpose of the EEO rule if 50 percent or more of the voting control of the licensees is held by the same persons or entities.
86. If a station is subject to a time brokerage agreement, the licensee's EEO public file report should include data concerning only its own recruitment efforts for full-time positions and not the efforts of the broker. If a licensee is a broker of another station or stations in the same market as an employment unit including a station or stations of which it is the licensee, the licensee's EEO public file report should include data concerning its EEO efforts at both the owned and brokered stations. If a licensee-broker does not own a station in the same market as the brokered station, then it shall include information concerning its EEO efforts at the brokered station in the EEO public file report for its own station that is geographically closest to the brokered station. The same policy will apply to EEO forms filed at mid-term (where applicable) (Form 397) and at renewal (Form 396), discussed. Non-licensee brokers are not required to file EEO public file reports because they are not licensees. If a broker is controlled directly or indirectly by a licensee or licensees, it should be considered a licensee-broker.
87. We recognize that there may be some employment units that are located in markets that include stations licensed to communities in more than one state that are in different renewal groups. As a result, the date of the last renewal application filing differs for some stations in the same employment unit, so that there could arguably be two dates governing the placing of the EEO public file report in the public file because that date is based on the anniversary of the filing of the last renewal application. The same problem arises with respect to the filing of mid-term reports (FCC Form 397), discussed. It is not our intent that employment units comply with these requirements more than once merely because they include stations in more than one renewal group. We will generally expect employment units in this situation to proceed in accordance with the schedule for only one of the renewal groups included in their unit. There may be rare instances involving television stations when it will be necessary for us to request a supplemental filing in order to comply with the statutory requirement that we conduct mid-term reviews of television licensees' EEO compliance.
88. An employment unit consisting of stations in more than one renewal group may select the renewal group that it will use for the purpose of determining the filing dates for its annual public file reports and its mid-term report, where applicable, in accordance with the following criteria. If the employment unit includes a television station, the dates for the television station should ordinarily govern, in order to accommodate the statutory requirement for mid-term review of television licensees' EEO compliance. Apart from this situation, the renewal group that will determine the employment unit's EEO filing schedule should be selected so as to minimize the time between the date for placing the EEO public file report in the public file and the date for the filing of renewal applications for stations located in renewal groups that have different renewal filing dates than the renewal group used to determine the employment unit's EEO filing schedule.
89. There may also be circumstances in which an employment unit consists of television and radio stations that are part of the same renewal group, except that the renewal schedule for radio is one year earlier than the schedule for television. In these circumstances, the filing schedule for television stations should be used for purposes of filing the mid-term report (FCC Form 397) for the employment unit, if it is subject to the requirement to file a mid-term report. This report would cover all stations in the employment unit. Thus, there would be no need to file a separate mid-term report for the radio station(s). Because the date for placing the annual public file report in the public file is the same for both radio and television, the most recent public file report should be submitted with the renewal applications for both television and radio stations in the employment unit.
90. Renewal applications must still be filed separately for each station in accordance with the regular schedule for the station's renewal group. FCC Form 396, the EEO form submitted with the renewal application, discussed below, requires that the licensee attach the EEO public file report that is ordinarily placed in the public file simultaneously with the filing of the renewal application, as well as the report for the prior year. When a station is part of an employment unit that is using the EEO filing schedule for another renewal group, the station should submit with its FCC Form 396 the most recent EEO public file report prepared for the employment unit. If the licensee feels that the most recent EEO public file report does not accurately reflect the employment unit's EEO program as of the date of the filing of the renewal application, it should disclose any pertinent facts as part of the narrative statement also required by the FCC Form 396.
91. Low power television (LPTV) stations are subject to the broadcast EEO rule by virtue of a cross-reference contained in § 74.780 of the Commission's Rules. (Licensees of low power FM (LPFM) stations are subject to the Commission's prohibition against employment discrimination.
92.
93. We will also monitor EEO compliance through random audits and targeted investigations resulting from information received as to possible violations. Each year we will select for audit approximately five percent of all licensees in the radio and television services, ensuring that, even though the number of radio licensees is significantly larger than television licensees, both services are represented in the audit process. Initially, the inquiry may request the contents of the station's public file. Further inquiry or inquiries may be conducted requesting additional documentation of recruitment efforts that is not in the public file. Based on the circumstances of the case, the inquiry could potentially include, but not be limited to, (1) A request for data covering any period of the license term; and (2) interviews of witnesses, including any complainant and present or former station employees.
94. Licensees will be subject to a variety of sanctions and remedies for EEO rule violations or deficiencies. Some examples of violations or deficiencies might include: engaging in employment discrimination in hiring or promotions; failure to file a mid-term review when due; failure to file an EEO public file report when due; failure to file Form 396 when due; misrepresentation of outreach efforts or other information; non-responsiveness or evasion in responding to a written Commission inquiry; failure to recruit for all vacancies absent exigent circumstances; failure to widely disseminate information concerning vacancies for full-time positions; failure to analyze routinely the adequacy of the various program elements in achieving broad outreach to all segments of the community; failure to undertake the required Prong 3 menu options; and failure to notify organizations that request vacancy notices. Also, it may constitute a violation of the EEO rule if, based on all of the evidence, we determine that a licensee has attempted to evade our requirements through token or sham efforts.
95. We take the EEO rules and obligations we establish here very seriously, and fully expect broadcasters and MVPDs to do the same. We remind licensees that it is as true today as it was 20 years ago that a “documented pattern of intentional discrimination would put seriously into question a licensee's character qualification to remain a licensee.” We intend to carefully monitor compliance with our EEO rules. Sanctions and remedies that may be issued by the Commission for deficiencies in licensees' EEO compliance include admonishments, reporting conditions, forfeitures, short term renewal of license, or designation for hearing for possible revocation of license or denial of renewal. The appropriate sanction or remedy will be determined on a case-by-case basis. Sanctions will be greater in cases involving recidivism, continuous EEO non-compliance, or intentional discrimination. In particular, if sufficiently egregious violations are found, we will not hesitate to designate for hearing.
96. We will also be taking steps to ensure that broadcasters, MVPDs, and the public are aware of and able to comply with the EEO rules and policies. First, we will continue to maintain an EEO page on the Commission's Web site. In addition, our Consumer & Governmental Affairs Bureau (CGB) will provide information to the public on the new rules adopted by the Commission. CGB will make a factsheet on the rules available to the public through our consumer centers and our Web site. Commission staff will continue to participate in conferences held throughout the country that deal with broadcast and MVPD EEO issues. Finally, as always, our EEO staff is available to answer more specific questions and provide informal guidance regarding the rules. We encourage the industry and the public to take advantage of these resources.
97.
98. We readopt, with modifications, FCC Form 396, which is filed by broadcasters as part of their renewal applications. We will delete the Option A/Option B election. The form as adopted by the
99. The version of Form 396 adopted by the
100. FCC Form 396-A is to be used for applications for the construction of a new broadcast station or for the sale of an existing broadcast station. We will readopt this form but delete references to the Option A/Option B election.
101. We adopted in the
102.
103. In the
104. With one exception, we find no basis in the record to provide additional exemptions from our rule beyond those referenced. First, we reject as unsupported in the record any suggestion that the rule we adopt today imposes unreasonable burdens on small broadcasters. As a general matter, the rule imposes minimal burdens. In addition, small broadcasters are permitted to perform fewer menu options, and most likely will have fewer hires, resulting in fewer records to keep and fewer job vacancies requiring recruitment under the rule. Further, as we found in the
105. We find that it would be appropriate, to modify our Prong 3 menu option requirement for stations in smaller markets. We recognize that smaller markets may not have the resources in the community to support some of the activities contemplated in Prong 3. We did not address this problem in the
106. We will define the scope of this exemption as extending to any station employment unit consisting solely of a station or stations licensed to a community that is located in a county that is outside of all metropolitan areas, as defined by OMB, or is located in a metropolitan area that has a population of fewer than 250,000 persons. This will operate to reduce requirements for stations in most markets below the 100 largest markets using definitional criteria that are readily ascertainable from government sources. (The most recent OMB definition of metropolitan areas is contained in OMB Bulletin No. 99-04 (June 30, 1999).
107. In the
108. We will adopt substantially the same outreach program, recordkeeping and reporting requirements for MVPDs, as we have for broadcasters. The only distinctions will arise in light of the specific requirements imposed by section 634 of the Communications Act. We monitor the EEO programs pursuant to annual reports which have contained employment and program data, as required by statute. We will be creating a new form that will contain only program data. As mentioned, we are deferring consideration of a new form for MVPDs that requires employment data. Because our review of MVPD EEO compliance is an annual review pursuant to section 634, we define the Prong 3 menu options requirement for MVPDs in terms of performing two initiatives annually for those with more than ten full-time employees or one initiative annually for those with six to ten full-time employees. With respect to the definition of “community” for the purpose of determining broad outreach, we are leaving the definition of “community” for this purpose to the reasonable good faith discretion of the entity concerned. We will apply the same policy to MVPDs. MVPDs should use pertinent criteria, including the location of the system, pertinent market definitions adopted by public agencies or commercial services, and requests for notices of job vacancies from locally-based community groups. They should also consider what areas actually produce job applicants. MVPDs should engage in broad outreach throughout the entire local community from which they can reasonably expect to elicit applicants, whether or not that community is defined by its franchise area.
109. MVPD compliance with the EEO requirements is monitored pursuant to annual reports filed by MVPDs: FCC Form 395-A (for cable operators) and FCC Form 395-M (for other MVPDs). The only substantive modification required by the new rules adopted today is the elimination of the Option A/Option B election. In addition, we will combine these forms. The two forms are virtually identical except for a section in the Form 395-A requiring cable operators to list the communities in which they operate. In view of the similarity of the two forms, we do not find any necessity for having separate forms for cable operators and other MVPDs. Both forms request information concerning the entity's EEO outreach program. In addition, both forms request information as to the gender and racial/ethnic composition of the entity's workforce, analogous to the broadcast Form 395-B. As in the broadcast context, the data concerning the entity's workforce is no longer pertinent to the administration of our EEO outreach requirements. We will adopt at this time a single form, FCC Form 396-C, which will include the portions of Forms 395-A and 395-M relating to EEO outreach, but not the portion eliciting data concerning the entity's workforce, for use by all MVPDs. We will consider the adoption of a new form for eliciting workforce data from MVPDs as part of the future
110. The court in
111. In this
112.
113.
114. As required by the RFA, an IRFA was incorporated into the
115. This
116. One comment was filed specifically in response to the IRFA. The American Cable Association (ACA) proposes the following relief for smaller MVPDs serving fewer than 15,000 subscribers or, in the alternative, employing ten or fewer employees: an exemption from the EEO outreach requirements, streamlined recordkeeping and reporting requirements, and a streamlined FCC Form 395-A (Cable Television Annual Employment Report). ACA states that for many smaller companies, compliance with EEO outreach, recordkeeping, and reporting requirements imposes substantial administrative burdens and costs. ACA also filed these same comments regarding small MVPDs in response to the
117. The purpose of this rulemaking is to replace our prior EEO rule that was found in part to be unconstitutional. Hence, the recording, recordkeeping, and compliance requirements of the new rule will not exceed those under the former rule. We note that the Small Business Administration (SBA) approved our approach for small broadcast stations and small MVPDs under our former rule. Generally, no special skills will be necessary to comply with the requirements.
118. The
119. In addition, broadcasters and MVPDs must undertake two additional recruitment measures. The first recruitment measure requires broadcasters and MVPDs to provide notification of full-time job vacancies to any requesting organization if the organization is involved in assisting job seekers. Depending on the size or location of a station's staff, the second recruitment measure requires broadcasters to engage in at least four (for station employment units with more than ten full-time employees in larger markets) or two (for station employment units with five to ten full-time employees or if they are located in a small market) of the following menu options every two years: participation in at least four job fairs by station personnel who have substantial responsibility in the making of hiring decisions; hosting of at least one job fair; co-sponsoring at least one job fair with organizations in the business and professional community whose membership includes substantial participation of women and minorities; participation in at least four events sponsored by organizations representing groups present in the community interested in broadcast employment issues (including conventions, career days, workshops, and similar activities); establishment of an internship program designed to assist members of the community to acquire skills needed for broadcast employment; participation in job banks, Internet programs, and other programs designed to promote outreach generally; participation in scholarship programs designed to assist students interested in pursuing a career in broadcasting; establishment of training and mentoring programs designed to enable station personnel to acquire skills that could qualify them for higher level positions; participation in at least four events or programs sponsored by educational institutions relating to career opportunities in broadcasting; sponsorship of at least two events in the community designed to inform members of the public as to employment opportunities in broadcasting; listing of each upper-level category opening in a job bank or newsletter of media trade groups whose membership includes substantial participation of women and minorities; providing assistance to outside non-profit entities in the maintenance of web sites that provide counseling on the process of searching for broadcast employment and/or other career development assistance pertinent to broadcasting; providing training to management level personnel as to methods of ensuring equal employment opportunity and preventing discrimination; providing training to personnel of outside organizations interested in broadcast employment opportunities that would enable them to better refer job candidates for broadcast positions; and participation in other activities designed by the station employment unit to further the goal of disseminating information about employment opportunities in broadcasting to job candidates who might otherwise be unaware of such opportunities. MVPD units in larger markets with more than ten full-time employees engage in at least two options from the recruitment measures menu every year and MVPD units with six to ten full-time employees or those located in small markets engage in at least one option every year.
120. Also, broadcasters and MVPDs must retain records to demonstrate that they have recruited for all full-time permanent positions. Such recordkeeping includes: listings of all full-time vacancies filled, listings of recruitment sources, the address/contact person/telephone number of each recruitment source, dated copies of advertisements and other documentation announcing vacancies, listings of those organizations which requested notification of vacancies, the total number of interviewees for each vacancy, the date and recruitment source of each hire, the number of interviewees referred by each recruitment source, and documentation showing proof of participation in menu options. Broadcasters' records must be maintained until grant of the renewal application for the term during which the hiring activity occurred. MVPDs would retain their records for a minimum of seven years. In order to lessen any burdens, records may be maintained in an electronic format,
121. Stations and MVPDs must place annually the following EEO records in their local public inspection file: listings of full-time vacancies filled during the preceding year, recruitment sources used for each vacancy, the address/contact person/telephone number of each recruitment source, an indication of the organizations requesting notification, the total number of persons interviewed for full-time vacancies during the preceding year, the total number of interviewees referred by each recruitment source, a list of the recruitment source that referred each full-time hiree, and a brief description of the menu option items undertaken during the preceding year. Station units retain the materials in their file until final action has been taken on the station's next license renewal application, and cable entities retain their materials for a period of five years.
122. Most broadcasters must submit the contents of their station's EEO public inspection file to the FCC as part of their renewal application and midway through the license term for the Commission's mid-term review (for those subject to mid-term review), and MVPDs with six or more full-time employees submit copies of their EEO public inspection file to the Commission every five years. Broadcasters' submissions cover only the last two years of EEO activity. MVPDs' submissions cover only the last
123. Also, broadcasters subject to mid-term review must file Form 397 (Broadcast Mid-Term Report) and place a copy of the Report in the public inspection file. Broadcasters must also place a copy of Form 396 (Broadcast EEO Program Report) and Form 396-A (Broadcast Model EEO Program Report for the construction or sale of a station) in the public inspection file.
124. We also note that we have provided relief to broadcast and MVPD entities located in small markets. While this is not specifically a small entity relief, this action also lessens compliance burdens.
125. The new rules would apply to broadcast stations and MVPDs. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the rules adopted herein. Under the RFA, small entities may include small organizations, small businesses, and small governmental jurisdictions. The RFA, 5 U.S.C. 601(3), generally defines the term “small business” as having the same meaning as the term “small business concern” under the Small Business Act, 15 U.S.C. 632. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the [SBA] and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the
126. A small organization is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 1992, there were approximately 275,801 small organizations. Finally, “small governmental jurisdiction” generally means “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than 50,000.” As of 1992, there were approximately 85,006 such jurisdictions in the United States. This number includes 38,978 counties, cities, and towns; of these, 37,566, or 96 percent, have populations of fewer than 50,000. The United States Bureau of the Census (Census Bureau) estimates that this ratio is approximately accurate for all governmental entities. Thus, of the 85,006 governmental entities, we estimate that 81,600 (91 percent) are small entities.
127. We could not precisely apply the foregoing definition of “small business” in developing our estimates of the number of small entities to which the rules will apply. Our estimates reflect our best judgments based on the data available to us.
128. An element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific radio or television station is dominant in its field of operation. Accordingly, the following estimates of small businesses to which the new rules will apply do not exclude any radio or television station from the definition of a small business on this basis and are therefore overinclusive to that extent. An additional element of the definition of “small business” is that the entity must be independently owned and operated. The SBA's general size standards are developed taking into account these two statutory criteria. This does not preclude us from taking these factors into account in making our estimates of the numbers of small entities.
129. With respect to applying the revenue cap, the SBA has defined “annual receipts” specifically in 13 CFR 121.104, and its calculations include an averaging process. We do not currently require submission of financial data from licensees that we could use in applying the SBA's definition of a small business. Thus, for purposes of estimating the number of small entities to which the rules apply, we are limited to considering the revenue data that are publicly available, and the revenue data on which we rely may not correspond completely with the SBA definition of annual receipts.
130. Under SBA criteria for determining annual receipts, if a concern has acquired an affiliate or been acquired as an affiliate during the applicable averaging period for determining annual receipts, the annual receipts in determining size status include the receipts of both firms. The SBA defines affiliation in 13 CFR 121.103. In this context, the SBA's definition of affiliate is analogous to our attribution rules. Generally, under the SBA's definition, concerns are affiliates of each other when one concern controls or has the power to control the other, or a third party or parties controls or has the power to control both. The SBA considers factors such as ownership, management, previous relationships with or ties to another concern, and contractual relationships, in determining whether affiliation exists. Instead of making an independent determination of whether television stations were affiliated based on SBA's definitions, we relied on the databases available to us to provide us with that information.
131. The rules to be adopted pursuant to this
132. There were 1,695 full-service television stations operating as of December 2001. According to Census Bureau data for 1997, there were 906 Television Broadcasting firms, total, that operated for the entire year. Of this total, 734 firms had annual receipts of $9,999,999.00 or less and an additional 71 had receipts of $10 million to $24,999,999.00. Thus, under this standard, the majority of firms can be considered small.
133. The SBA defines a radio broadcasting station that has no more than $6 million in annual receipts as a small business. A radio broadcasting station is an establishment primarily engaged in broadcasting aural programs by radio to the public. Included in this industry are commercial, religious, educational, and other radio stations. Radio broadcasting stations which primarily are engaged in radio broadcasting and which produce radio program materials are similarly included. Radio stations which are
134. The
135.
136. The Communications Act also contains a definition of a small cable system operator, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1% of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenue in the aggregate exceeds $250,000,000.” The Commission has determined that there are 67,700,000 subscribers in the United States. We found that an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all of its affiliates, do not exceed $250 million in the aggregate. Based on available data, we find that the number of cable operators serving 677,000 subscribers or less totals approximately 1,450. Since we do not request nor collect information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250,000,000, we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.
137.
138.
139.
140. An alternative way to classify small entities is by the number of employees. Based on available data, we estimate that in 1997 the total number of full-service broadcast stations with four or fewer employees was 5186, of which 340 were television stations. Similarly, we estimate that in 1997, 1900 cable employment units employed fewer than six full-time employees. Also, in 1997, 296 “MVPD” employment units employed fewer than six full-time employees. We also estimate that in 1997, the total number of full-service broadcast stations with five to ten employees was 2145, of which 200 were television stations. Similarly, we estimate that in 1997, 322 cable employment units employed six to ten full-time employees. Also, in 1997, approximately 65 MVPD employment units employed six to ten full-time employees.
141. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
142. This
143. The
144. We provide this relief because entities with small staffs have limited personnel and financial resources to carry out EEO requirements. The exception for small businesses provides them with some relief of any recordkeeping and reporting costs. We believe that the relief to small broadcasters and MVPDs balances the importance of deterring discrimination and achieving broad outreach in broadcast and MVPD employment practices against the need to maintain minimal regulatory burdens.
145. The
146. The ACA asks for an exemption from the EEO outreach requirements, streamlined recordkeeping and reporting requirements, and a streamlined FCC Form 395-A (Cable Television Annual Employment Report) for cable systems with fewer than 15,000 subscribers or, in the alternative, employing ten or fewer employees. ACA explains that the Commission previously provided relief to systems with fewer than 15,000 subscribers in the context of rate regulation, and that compliance with EEO outreach and recordkeeping imposes substantial administrative burdens for smaller cable companies.
147. Fletcher Heald & Hildreth, P.L.C. (FH&H) requests that the Commission adopt a policy that when an owner has a controlling interest (20% or greater voting control) in a licensee, he or she would not be considered a station employee for purposes of the EEO rule, even if he or she in fact worked at the station.
148. We recognize that smaller markets may not have the resources in the community to support many of the required menu options. Accordingly, the EEO rule adopted in the
149. The EEO rule also will not consider owners holding a 20% or greater voting interest in a licensee as station employees for EEO purposes. This policy could assist small operators by reducing the number of full-time employees an entity would have when assessing its eligibility for a small entity exemption or other small business relief.
150. We find no basis in the record to provide any additional exemptions from our rule. Generalized claims as to the alleged burdens by commenters are unsupported by evidence. The rule we are adopting today does not impose unreasonable burdens on small entities. Nor does the rule impose hardships comparable to those involved in rate regulation. Further, as we found in the
151. With respect to streamlining reporting/recordkeeping requirements, we will replace Form 395-A with a new form, the FCC Form 396-C. MVPD compliance with the EEO rule's requirements is monitored pursuant to annual reports filed by MVPDs which must be placed in an entity's public file. The Form 396-C requires information concerning the entity's EEO outreach program and not its workforce. We will consider the adoption of a new form eliciting workforce data in a future
152. In order to lessen any burdens, the
153. The Commission will send a copy of the
154. Pursuant to the authority contained in sections 1, 4(i), 4(k), 257, 301, 303(r), 307, 308(b), 309, 334, 403, and 634 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(k), 257, 301, 303(r), 307, 308(b), 309, 334, 403, and 554,
155. The late-filed comments and reply comments in this proceeding are considered as part of the record in this proceeding.
156. Pursuant to the Congressional Review Act, the new rules and amendments will become effective either March 10, 2003, or upon receipt by Congress of a report in compliance with the Congressional Review Act, 5 U.S.C. 801, whichever is later, and the information collection contained in these rules will become effective March 10, 2003, following OMB approval, unless a notice is published in the
157. FCC Forms 395A, 395B and 395M, and §§ 73.3612 of the Commission's rules, 47 CFR 73.3612 (Annual Employment Report) and § 76.1802 of the Commission's rules, 47 CFR 76.1802 (Equal Employment Opportunity) will remain suspended pending further action on workforce data collection issues.
158. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this
159. MM Docket No. 98-204 will remain open for the limited purpose of considering the issues raised in the
Cable television, Equal employment opportunity.
47 U.S.C. 154, 303, 334 and 336.
(a)
(b)
(1) Define the responsibility of each level of management to ensure vigorous enforcement of its policy of equal opportunity, and establish a procedure to review and control managerial and supervisory performance;
(2) Inform its employees and recognized employee organizations of the equal employment opportunity policy and program and enlist their cooperation;
(3) Communicate its equal employment opportunity policy and program and its employment needs to sources of qualified applicants without regard to race, color, religion, national origin, or sex, and solicit their recruitment assistance on a continuing basis;
(4) Conduct a continuing program to exclude all unlawful forms of prejudice or discrimination based upon race, color, religion, national origin, or sex from its personnel policies and practices and working conditions; and
(5) Conduct a continuing review of job structure and employment practices and adopt positive recruitment, job design, and other measures needed to ensure genuine equality of opportunity to participate fully in all organizational units, occupations, and levels of responsibility.
(c)
(1) Recruit for every full-time job vacancy in its operation. A job filled by an internal promotion is not considered a vacancy for which recruitment is necessary. Religious radio broadcasters who establish religious affiliation as a qualification for a job position are not required to comply with these recruitment requirements with respect to that job position or positions, but will be expected to make reasonable, good faith efforts to recruit applicants who are qualified based on their religious affiliation. Nothing in this section shall be interpreted to require a broadcaster to grant preferential treatment to any individual or group based on race, color, national origin, religion, or gender.
(i) A station employment unit shall use recruitment sources for each vacancy sufficient in its reasonable, good faith judgment to widely disseminate information concerning the vacancy.
(ii) In addition to such recruitment sources, a station employment unit shall provide notification of each full-time vacancy to any organization that distributes information about employment opportunities to job seekers or refers job seekers to employers, upon request by such organization. To be entitled to notice of vacancies, the requesting organization must provide the station employment unit with its name, mailing address, e-mail address (if applicable), telephone number, and contact person, and identify the category or categories of vacancies of which it requests notice. (An organization may request notice of all vacancies).
(2) Engage in at least four (if the station employment unit has more than ten full-time employees and is not located in a smaller market) or two (if it has five to ten full-time employees and/or is located entirely in a smaller market) of the following initiatives during each two-year period beginning with the date stations in the station employment unit are required to file renewal applications, or the second, fourth or sixth anniversaries of that date.
(i) Participation in at least four job fairs by station personnel who have substantial responsibility in the making of hiring decisions;
(ii) Hosting of at least one job fair;
(iii) Co-sponsoring at least one job fair with organizations in the business and professional community whose membership includes substantial participation of women and minorities;
(iv) Participation in at least four events sponsored by organizations representing groups present in the community interested in broadcast employment issues, including conventions, career days, workshops, and similar activities;
(v) Establishment of an internship program designed to assist members of the community to acquire skills needed for broadcast employment;
(vi) Participation in job banks, Internet programs, and other programs designed to promote outreach generally (
(vii) Participation in scholarship programs designed to assist students interested in pursuing a career in broadcasting;
(viii) Establishment of training programs designed to enable station personnel to acquire skills that could qualify them for higher level positions;
(ix) Establishment of a mentoring program for station personnel;
(x) Participation in at least four events or programs sponsored by educational institutions relating to career opportunities in broadcasting;
(xi) Sponsorship of at least two events in the community designed to inform and educate members of the public as to employment opportunities in broadcasting;
(xii) Listing of each upper-level category opening in a job bank or newsletter of media trade groups whose membership includes substantial participation of women and minorities;
(xiii) Provision of assistance to unaffiliated non-profit entities in the maintenance of web sites that provide counseling on the process of searching for broadcast employment and/or other career development assistance pertinent to broadcasting;
(xiv) Provision of training to management level personnel as to methods of ensuring equal employment opportunity and preventing discrimination;
(xv) Provision of training to personnel of unaffiliated non-profit organizations interested in broadcast employment opportunities that would enable them to better refer job candidates for broadcast positions;
(xvi) Participation in other activities designed by the station employment unit reasonably calculated to further the goal of disseminating information as to employment opportunities in broadcasting to job candidates who might otherwise be unaware of such opportunities.
(3) Analyze its recruitment program on an ongoing basis to ensure that it is effective in achieving broad outreach to potential applicants, and address any problems found as a result of its analysis.
(4) Periodically analyze measures taken to:
(i) Disseminate the station's equal employment opportunity program to job applicants and employees;
(ii) Review seniority practices to ensure that such practices are nondiscriminatory;
(iii) Examine rates of pay and fringe benefits for employees having the same duties, and eliminate any inequities based upon race, national origin, color, religion, or sex discrimination;
(iv) Utilize media for recruitment purposes in a manner that will contain no indication, either explicit or implicit, of a preference for one race, national origin, color, religion or sex over another;
(v) Ensure that promotions to positions of greater responsibility are made in a nondiscriminatory manner;
(vi) Where union agreements exist, cooperate with the union or unions in the development of programs to ensure all persons of equal opportunity for employment, irrespective of race, national origin, color, religion, or sex, and include an effective nondiscrimination clause in new or renegotiated union agreements; and
(vii) Avoid the use of selection techniques or tests that have the effect of discriminating against any person based on race, national origin, color, religion, or sex.
(5) Retain records to document that it has satisfied the requirements of paragraphs (c)(1) and (2) of this section. Such records, which may be maintained in an electronic format, shall be retained until after grant of the renewal application for the term during which the vacancy was filled or the initiative occurred. Such records need not be submitted to the FCC unless specifically requested. The following records shall be maintained:
(i) Listings of all full-time job vacancies filled by the station employment unit, identified by job title;
(ii) For each such vacancy, the recruitment sources utilized to fill the vacancy (including, if applicable, organizations entitled to notification pursuant to paragraph (c)(1)(ii) of this section, which should be separately identified), identified by name, address, contact person and telephone number;
(iii) Dated copies of all advertisements, bulletins, letters, faxes, e-mails, or other communications announcing vacancies;
(iv) Documentation necessary to demonstrate performance of the initiatives required by paragraph (c)(2) of this section, including sufficient information to fully disclose the nature of the initiative and the scope of the station's participation, including the station personnel involved;
(v) The total number of interviewees for each vacancy and the referral source for each interviewee; and
(vi) The date each vacancy was filled and the recruitment source that referred the hiree.
(6) Annually, on the anniversary of the date a station is due to file its renewal application, the station shall place in its public file, maintained pursuant to § 73.3526 or § 73.3527, and on its web site, if it has one, an EEO public file report containing the following information (although if any broadcast licensee acquires a station pursuant to FCC Form 314 or FCC Form 315 during the twelve months covered by the EEO public file report, its EEO public file report shall cover the period starting with the date it acquired the station):
(i) A list of all full-time vacancies filled by the station's employment unit during the preceding year, identified by job title;
(ii) For each such vacancy, the recruitment source(s) utilized to fill the vacancy (including, if applicable, organizations entitled to notification pursuant to paragraph (c)(1)(ii) of this section, which should be separately identified), identified by name, address, contact person and telephone number;
(iii) The recruitment source that referred the hiree for each full-time vacancy during the preceding year;
(iv) Data reflecting the total number of persons interviewed for full-time vacancies during the preceding year and the total number of interviewees referred by each recruitment source utilized in connection with such vacancies; and
(v) A list and brief description of initiatives undertaken pursuant to paragraph (c)(2) of this section during the preceding year.
(d)
(e)
(1) A full-time employee is a permanent employee whose regular work schedule is 30 hours per week or more.
(2) A station employment unit is a station or a group of commonly owned stations in the same market that share at least one employee.
(3) A smaller market includes metropolitan areas as defined by the Office of Management and Budget with a population of fewer than 250,000 persons and areas outside of all metropolitan areas as defined by the Office of Management and Budget.
(f)
(1) All broadcast stations, including those that are part of an employment unit with fewer than five full-time employees, shall file a Broadcast Equal Employment Opportunity Program Report (Form 396) with their renewal application. Form 396 is filed on the date the station is due to file its application for renewal of license. If a broadcast licensee acquires a station pursuant to FCC Form 314 or FCC Form 315 during the period that is to form the basis for the Form 396, information provided on its Form 396 should cover the licensee's EEO recruitment activity during the period starting with the date it acquired the station. Stations are required to maintain a copy of their Form 396 in the station's public file in accordance with the provisions of §§ 73.3526 and 73.3527.
(2) The Commission will conduct a mid-term review of the employment practices of each broadcast television station and each radio station that is part of an employment unit of more than ten full-time employees four years following the station's most recent license expiration date as specified in § 73.1020. Each such licensee is required to file with the Commission the Broadcast Mid-Term Report (FCC Form 397) four months prior to that date. If a broadcast licensee acquires a station pursuant to FCC Form 314 or FCC Form 315 during the period that is to form the basis for the Form 397, its Report should cover the licensee's EEO recruitment activity during the period starting with the date it acquired the station.
(3) If a station is subject to a time brokerage agreement, the licensee shall file Forms 396, Forms 397, and EEO public file reports concerning only its own recruitment activity. If a licensee is a broker of another station or stations, the licensee-broker shall include its recruitment activity for the brokered station(s) in determining the bases of Forms 396, Forms 397 and the EEO public file reports for its own station. If a licensee-broker owns more than one station, it shall include its recruitment activity for the brokered station in the Forms 396, Forms 397, and EEO public file reports filed for its own station that is most closely affiliated with, and in the same market as, the brokered station. If a licensee-broker does not own a station in the same market as the brokered station, then it shall include its recruitment activity for the brokered station in the Forms 396, Forms 397, and EEO public file reports filed for its own station that is geographically closest to the brokered station.
(4) Broadcast stations subject to this section shall maintain records of their recruitment activity necessary to demonstrate that they are in compliance with the EEO rule. Stations shall ensure that they maintain records sufficient to verify the accuracy of information provided in Forms 396, Forms 397, and EEO public file reports. To determine compliance with the EEO rule, the Commission may conduct inquiries of licensees at random or if it has evidence of a possible violation of the EEO rule. In addition, the Commission will conduct random audits. Specifically, each year approximately five percent of all licensees in the television and radio services will be randomly selected for audit, ensuring that, even though the number of radio licensees is significantly larger than television licensees, both services are represented in the audit process. Upon request, stations shall make records available to the Commission for its review.
(5) The public may file complaints throughout the license term based on a station's Form 397 or the contents of a station's public file. Provisions concerning filing, withdrawing, or non-filing of informal objections or petitions to deny license renewal, assignment, or transfer applications are delineated in §§ 73.3584 and 73.3587-3589 of the Commission's rules.
(g)
47 U.S.C. 151, 152, 153, 154, 301, 302, 303, 303a, 307, 308, 309, 312, 317, 325, 503, 521, 522, 531, 532, 533, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 560, 561, 571, 572, 573.
(b) Establish, maintain and carry out a positive continuing program of outreach activities designed to ensure equal opportunity and nondiscrimination in employment. The following activities shall be undertaken by each employment unit:
(1) Recruit for every full-time job vacancy in its operation. A job filled by an internal promotion is not considered a vacancy for which recruitment is necessary. Nothing in this section shall be interpreted to require a multichannel video programming distributor to grant preferential treatment to any individual or group based on race, national origin, color, religion, age, or gender.
(i) An employment unit shall use recruitment sources for each vacancy sufficient in its reasonable, good faith judgment to widely disseminate information concerning the vacancy.
(ii) In addition to using such recruitment sources, a multichannel video programming distributor employment unit shall provide notification of each full-time vacancy to any organization that distributes information about employment opportunities to job seekers or refers job seekers to employers, upon request by such organization. To be entitled to notice of vacancies, the requesting organization must provide the multichannel video programming distributor employment unit with its name, mailing address, e-mail address (if applicable), telephone number, and contact person, and identify the category or categories of vacancies of which it requests notice. (An organization may request notice of all vacancies).
(2) Engage in at least two (if the unit has more than ten full-time employees and is not located in a smaller market) or one (if the unit has six to ten full-time employees and/or is located, in whole or in part, in a smaller market) of the following initiatives during each twelve-month period preceding the filing of an EEO program annual report:
(i) Participation in at least two job fairs by unit personnel who have substantial responsibility in the making of hiring decisions;
(ii) Hosting of at least one job fair;
(iii) Co-sponsoring at least one job fair with organizations in the business and professional community whose membership includes substantial participation of women and minorities;
(iv) Participation in at least two events sponsored by organizations representing groups present in the community interested in multichannel video programming distributor employment issues, including conventions, career days, workshops, and similar activities;
(v) Establishment of an internship program designed to assist members of the community in acquiring skills needed for multichannel video programming distributor employment;
(vi) Participation in job banks, Internet programs, and other programs designed to promote outreach generally (
(vii) Participation in a scholarship program designed to assist students interested in pursuing a career in multichannel video programming communications;
(viii) Establishment of training programs designed to enable unit personnel to acquire skills that could qualify them for higher level positions;
(ix) Establishment of a mentoring program for unit personnel;
(x) Participation in at least two events or programs sponsored by educational institutions relating to career opportunities in multichannel video programming communications;
(xi) Sponsorship of at least one event in the community designed to inform and educate members of the public as to employment opportunities in multichannel video programming communications;
(xii) Listing of each upper-level category opening in a job bank or newsletter of media trade groups whose membership includes substantial participation of women and minorities;
(xiii) Provision of assistance to unaffiliated non-profit entities in the maintenance of web sites that provide counseling on the process of searching for multichannel video programming employment and/or other career development assistance pertinent to multichannel video programming communications;
(xiv) Provision of training to management level personnel as to methods of ensuring equal employment opportunity and preventing discrimination;
(xv) Provision of training to personnel of unaffiliated non-profit organizations interested in multichannel video programming employment opportunities that would enable them to better refer job candidates for multichannel video programming positions;
(xvi) Participation in other activities reasonably calculated by the unit to further the goal of disseminating information as to employment opportunities in multichannel video programming to job candidates who might otherwise be unaware of such opportunities.
(f) A multichannel video programming distributor shall analyze its recruitment program on an ongoing basis to ensure that it is effective in achieving broad outreach, and address any problems found as a result of its analysis.
(g) Analyze on an ongoing basis its efforts to recruit, hire, promote and use services without discrimination on the basis of race, national origin, color, religion, age, or sex and explain any difficulties encountered in implementing its equal employment opportunity program. For example, this requirement may be met by:
(1) Where union agreements exist, cooperating with the union or unions in the development of programs to ensure all persons equal opportunity for employment, and including an effective nondiscrimination clause in new or renegotiated union agreements;
(2) Reviewing seniority practices to ensure that such practices are nondiscriminatory;
(3) Examining rates of pay and fringe benefits for employees having the same duties, and eliminating any inequities based upon race, national origin, color, religion, age, or sex discrimination;
(4) Evaluating the recruitment program to ensure that it is effective in achieving a broad outreach to potential applicants.
(5) Utilizing media for recruitment purposes in a manner that will contain no indication, either explicit or implicit, of a preference for one race, national origin, color, religion, age, or sex over another; and
(6) Avoiding the use of selection techniques or tests that have the effect of discriminating against qualified minority groups or women.
(h) A full-time employee is a permanent employee whose regular work schedule is 30 hours per week or more.
(i) The provisions of paragraphs (b)(1)(ii), (b)(2), (c), and (f) of this section shall not apply to multichannel video programming distributor employment units that have fewer than six full-time employees.
(j) For the purposes of this rule, a smaller market includes metropolitan areas as defined by the Office of Management and Budget with a population of fewer than 250,000 persons and areas outside of all metropolitan areas as defined by the Office of Management and Budget.
(a)
(b)
(c)
(d)
(e)
(f)
(a) Every employment unit with six or more full-time employees shall maintain for public inspection a file containing copies of all EEO program annual reports filed with the Commission pursuant to § 76.77 and the equal employment opportunity program information described in paragraph (b) of this section. These materials shall be placed in the unit's public inspection file annually by the date that the unit's EEO program annual report is due to be filed and shall be retained for a period of five years. The file shall be maintained at the central office and at every location with six or more full-time employees. A headquarters employment unit file and a file containing a consolidated set of all documents pertaining to the other employment units of a multichannel video programming distributor that operates multiple units shall be maintained at the central office of the headquarters employment unit. The multichannel video programming distributor shall provide reasonable accommodation at these locations for undisturbed inspection of its equal employment opportunity records by members of the public during regular business hours.
(b) The following equal employment opportunity program information shall be included annually in the unit's public file, and on the unit's web site, if it has one, at the time of the filing of its FCC Form 396-C:
(1) A list of all full-time vacancies filled by the multichannel video programming distributor employment unit during the preceding year, identified by job title;
(2) For each such vacancy, the recruitment source(s) utilized to fill the vacancy (including, if applicable, organizations entitled to notification pursuant to § 76.75(b)(1)(ii) of this section, which should be separately identified), identified by name, address, contact person and telephone number;
(3) The recruitment source that referred the hiree for each full-time vacancy during the preceding year;
(4) Data reflecting the total number of persons interviewed for full-time vacancies during the preceding year and the total number of interviewees referred by each recruitment source utilized in connection with such vacancies; and
(5) A list and brief description of the initiatives undertaken pursuant to § 76.75(b)(2) during the preceding year, if applicable.
The following appendix will not appear in the Code of Federal Regulations.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS issues this final rule to amend regulations governing Atlantic billfish and North Atlantic swordfish recreational fisheries to implement recommendations adopted at the 2000 meeting of the International Commission for the Conservation of Atlantic Tunas (ICCAT) and enhance management programs for these species. This rule implements a mandatory recreational landings self-reporting system for Atlantic blue marlin, Atlantic white marlin, west Atlantic sailfish, and North Atlantic swordfish; establishes a recreational retention limit for North Atlantic swordfish; adds handlines as an authorized gear for North Atlantic swordfish; clarifies language concerning applicability of recreational retention limits for sharks, yellowfin tuna, and North Atlantic swordfish; clarifies language regarding the Billfish Certificate of Eligibility (COE); and makes the criterion for determining the size and/or size class the same for both vessels commercially permitted for swordfish and recreational vessels. In addition, NMFS will promote voluntary use of circle hooks within the recreational swordfish fishery via an outreach program. The intent of these actions is to improve monitoring and conservation of overfished Atlantic billfish and North Atlantic swordfish stocks.
Effective March 2, 2003.
Copies of the supporting documents including the Environmental Assessment/Regulatory Impact Review (EA/RIR) may be obtained from the Highly Migratory Species Management Division, 1315 East-West Highway, Silver Spring, MD 20910. The EA/RIR may also be viewed on the Highly Migratory Species (HMS) Management Division website at
Russell Dunn or Rick Pearson, 727-570-5447.
The background and rationale for this final rule were contained in the preamble to the proposed rule published in the
This final rule revises 50 CFR 635.5 to establish an enhanced monitoring program for non-tournament recreational landings of Atlantic sailfish, blue and white marlin, and swordfish through a self-reporting method based on a toll-free telephone call-in system. North Carolina and Maryland are exempted from reporting non-tournament billfish/swordfish landings since these states have modified their large pelagic/bluefin tuna catch card reporting programs to include these species. To avoid duplication, landings reported through a registered HMS tournament are exempt from the telephone call-in requirement.
This final rule also revises regulations at 50 CFR 635.22 to implement a recreational retention limit for swordfish of one swordfish per person, up to three swordfish per vessel, per trip; revises 50 CFR 635.21(d)(4) to include handlines as authorized gear in the recreational swordfish fishery to clarify the consolidated regulatory text; revises 50 CFR 635.22 to apply the daily recreational retention limits for all HMS species to vessels that are HMS Charter/Headboat (CHB) permit holders; revises 50 CFR 635.31 to clarify the consolidated regulatory text in the Billfish COE regulations; and revises 50 CFR 635.20(a) to apply the same standard of measurement to both recreational vessels and commercial vessels that have been issued a limited access swordfish permit.
NMFS held three public hearings and received written comments during the comment period on the proposed rule. Public hearings were held in Mobile, AL, on January 14, 2002; in Manteo, NC, on January 22, 2002; and in Ft. Lauderdale, FL, on January 23, 2002. Comments were submitted by recreational and commercial organizations, state agencies, conservation groups, and the general public. All comments were considered and responded to as follows:
In response to comments received during the comment period and to clarify regulatory language, the following changes were made to the proposed rule (December 26, 2001, 66 FR 66386):
In § 635.5 (c), a lead-in paragraph was added to explain angler reporting responsibility and the wording was changed in 635.5 (c)(3) to make the intent of alternative reporting more easily understood.
In § 635.20(a), the proposed regulatory text has been amended to apply the same standard of measurement and/or size class to both recreational and commercial North Atlantic swordfish landings.
In § 635.22 (f), one North Atlantic swordfish per vessel per trip was changed to one North Atlantic swordfish per person, up to three North Atlantic swordfish per vessel, per trip.
In § 635.30(d), the proposed regulatory text has been withdrawn so that recreational vessels are not required to maintain North Atlantic swordfish with its head, fins, and bill intact through offloading.
In § 635.71, paragraph (b)(6) was revised to show that BFT reporting is now under § 635.5(c)(1) or (3) instead of § 635.5(c), paragraph (c)(6) was added to reflect changes in § 635.5 that mandated recreational self-reporting, paragraph (e)(14) was added to reflect changes in § 635.22(f) implementing a retention limit for recreationally landed North Atlantic swordfish, and paragraph (e)(15) was added to reflect changes in § 635.5(c)(2) and (3) on North Atlantic swordfish reporting. Some of these changes were necessary because the prohibitions section was omitted in the proposed rule. These changes do not alter the intent of the proposed rule.
Finally, several changes were made to conform with regulatory changes made in another final rule that published on December 18, 2002 (67 FR 77434).
This rule is published under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the Atlantic Tunas Convention Act. The Assistant Administrator for Fisheries, NOAA (AA), has determined that the regulations contained in this rule are necessary to implement the recommendations of ICCAT and to manage the domestic Atlantic highly migratory species fisheries, and are consistent with the Magnuson-Stevens Act and other applicable laws.
This final rule has been determined to be significant for purposes of Executive Order 12866.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel of Advocacy of the Small Business Administration that the proposed rule for this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule. NMFS received no comments during the comment period on the proposed rule that would change that conclusion. However, some CHB operators raised a concern during the public comment period with regard to the one swordfish per vessel retention limit. To respond to this concern and better reflect current catch patterns, NMFS modified the final rule to provide a one swordfish per person, up to three swordfish per vessel, per trip limit. This modification does not alter the agency's prior conclusion of no significant economic impact on a substantial number of small entities.
This final rule will apply to all participants in the recreational Atlantic marlin and North Atlantic swordfish fisheries, all of which are considered small entities. The Billfish Fishery Management Plan estimated that there were 7,915 U.S. tournament billfish anglers in the western Atlantic in 1989. A 1992 inventory of 359 billfish tournaments indicated an average expenditure of $2,147 per angler per trip (including tournament fees), or $4,242 for each fish caught, corresponding to $32,382 for each billfish landed. Swordfish are not generally included in billfish tournament prize categories and non-tournament recreational catch data are not currently systematically collected but may be frequent.
Because of the large size of most recreationally landed swordfish, the retention limit in this final action should be sufficient for swordfish intended for personal consumption, even on vessels carrying multiple anglers. Recreationally landed swordfish cannot be sold commercially, therefore no significant economic impacts are anticipated for individual anglers. The modified retention limit should also minimize any potential impacts on CHB operators. An increase in the vessel trip limit will more accurately reflect recent catch patterns in the fishery and, since many trips are unsuccessful, on average, the three swordfish per vessel limit is not expected to be reached. The swordfish fishery is a rare event fishery characterized by clustered catch rates in which several trips may result in no swordfish catches and a few trips may catch several swordfish. The call-in system takes less than 3 to 5 minutes for each no-cost report and an additional 3 to 5 minutes for a confirmation call-back, thus no significant economic impacts are anticipated.
NMFS prepared an Environmental Assessment for this rule that describes impacts on the human environment and determined that no significant impacts would result.
This final rule is consistent with the Endangered Species Act. On September 7, 2000, NMFS reinitiated formal consultation for all HMS commercial fisheries under section 7 of the ESA. A Biological Opinion (BiOp) issued June 14, 2001, concluded that continued operation of the Atlantic pelagic longline fishery is likely to jeopardize the continued existence of endangered and threatened sea turtle species under NMFS jurisdiction. NMFS issued a final rule on July 9, 2002 (67 FR 45393), to implement the reasonable and prudent alternative required by the BiOp. The fishing activities conducted pursuant to this rule will not affect listed species in any manner not already considered in the BiOp because these actions primarily address reporting requirements and are not expected to alter fishing practices or fishing effort in any way not previously considered.
This rule contains a collection-of-information requirement subject to the Paperwork Reduction Act. The collection of this information has been approved by the Office of Management and Budget, OMB Control Number 0648-0446. Public reporting burden for this collection of information is estimated to average 5 minutes per initial reporting call and 5 minutes per confirmation callback, and 5 minutes to fill out a catch reporting card (for those pilot programs conducted under state reporting systems). This action also repeats collection-of-information requirements that have been approved by OMB under control number 0648-0216. Public reporting burden for this collection of information is 20 minutes to prepare a billfish COE and 2 minutes for recordkeeping by subsequent purchasers of the billfish. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for the reducing the burden, to NMFS and OMB (see
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be
Fisheries, Fishing, Fishing vessels, Foreign relations, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Statistics, Treaties.
1. The authority citation for part 635 continues to read as follows:
16 U.S.C. 971
(c)
(1)
(2)
(3)
(a)
(d) * * *
(4) * * *
(iv) Except for persons aboard a vessel that has been issued a limited access North Atlantic swordfish permit under § 635.4, no person may fish for North Atlantic swordfish with, or possess a North Atlantic swordfish taken by, any gear other than handline or rod and reel.
(a)
(c)
(d)
(e)
(f)
(b) * * *
(2) * * *
(ii) It is accompanied by a Billfish Certificate of Eligibility (COE) form, obtained from NMFS, or its equivalent that documents that the fish was harvested from other than the Atlantic Ocean management unit.
(A) The Billfish COE required under this section must indicate, in English, the name and homeport of the harvesting vessel, and the date and port of offloading. Only the purchaser of the billfish from the harvesting vessel must complete this information.
(B) The Billfish COE must be signed and dated by each dealer in possession of the product throughout the chain of custody up to but not including the consumer. This signature indicates a declaration that the billfish were not harvested from the management unit.
(C) A Billfish COE may refer to billfish taken from only one harvesting vessel. If a shipment contains billfish taken from more than one vessel, a separate billfish COE must accompany the shipment for each harvesting vessel.
(D) A model Billfish COE can be obtained by contacting the Division Chief. An equivalent form may be used provided it contains all of the information required under this section.
(3) For the purposes of this paragraph, a dealer or seafood processor means any individual, other than a consumer, who engages in any activity, other than fishing, of industry, trade, or commerce, including but not limited to the buying or selling of a regulated species or parts thereof and activities conducted for the purpose of facilitating such buying and selling.
(b) * * *
(6) As an angler, fail to report a BFT, as specified in
§ 635.5(c)(1) or (3).
(c) * * *
(6) As an angler, fail to report a billfish, as specified in § 635.5(c)(2) or (3).
(e) * * *
(14) Exceed the recreational catch limit for North Atlantic swordfish, as specified in § 635.22(f).
(15) As an angler, fail to report a North Atlantic swordfish, as specified in § 635.5(c)(2) or (3).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS issues a final rule to amend regulations governing the North Pacific Groundfish Observer Program (Observer Program). This action is necessary to refine observer coverage requirements and improve support for observers. This action is intended to ensure continued collection of high quality observer data to support the management objectives of the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area and the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMPs) and to promote the goals and objectives contained in those FMPs.
Effective on February 5, 2003.
Copies of the Regulatory Impact Review/Final Regulatory Flexibility Analysis (RIR/FRFA) prepared for this regulatory action and the 1996 Environmental Assessment (EA) RIR/FRFA prepared for the Interim North Pacific Groundfish Observer Program and the RIR/FRFAs for the subsequent extensions of the Interim North Pacific Groundfish Observer Program may also be obtained from the Alaska Region, NMFS, P.O. Box 21668, Juneau, AK 99802, Attn: Lori Durall.
Sue Salveson, 907-586-7228.
NMFS manages the U.S. groundfish fisheries of the Gulf of Alaska (GOA) and the Bering Sea and Aleutian Islands Management Area (BSAI) in the Exclusive Economic Zone under the FMPs. The North Pacific Fishery Management Council (Council) prepared the FMPs pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations implementing the FMPs appear at 50 CFR part 679. General regulations that pertain to U.S. fisheries appear at subpart H of 50 CFR part 600.
The Council adopted and NMFS implemented the Interim Groundfish Observer Program (Interim Program) in 1996, which superseded the North Pacific Fisheries Research Plan (Research Plan). The requirements of the 1996 Interim Program were extended through 1997 (61 FR 56425, November 1, 1996), again through 1998 (62 FR 67755, December 30, 1997), again through 2000 (63 FR 69024, December 15, 1998), and extended through 2002 under a final rule published December 21, 2000 (65 FR 80381). The program was extended again through 2007 by way of a final rule published on December 6, 2002 (67 FR 72595). The Interim Program provides the framework for the collection of data by observers to obtain information necessary for the conservation and management of the groundfish fisheries managed under the FMPs. Further, it authorizes mandatory observer coverage requirements for vessels and shoreside processors and establishes vessel,
NMFS is working with the Council and the Council's Observer Advisory Committee (OAC) to address the above concerns and others through development of new options for an alternative infrastructure for the Observer Program.
A description of the regulatory provisions of the Interim Groundfish Observer Program was provided in the proposed and final rules implementing this program (61 FR 40380, August 2, 1996; 61 FR 56425, November 1, 1996, respectively) as well as the proposed and final rules extending this program through 1998 and again through 2000 (62 FR 49198, September 19, 1997; 62 FR 67755, December 30, 1997; 63 FR 47462, September 8, 1998; and 63 FR 69024, December 15, 1998, respectively).
A proposed rule to amend regulations governing observer coverage requirements for vessels and shoreside processors in the North Pacific Groundfish Fisheries was published in the
This final rule addresses concerns about (1) shoreside and stationary floating processor observer coverage; (2) shoreside processor observer logistics; (3) observer coverage requirements for vessels fishing for groundfish with pot gear; and (4) confidentiality of observer personal information.
The reduced observer coverage period for a given shoreside or stationary floating processor would be authorized beginning on the fourth calendar day following the day that a pollock or cod fishery closes, allowing for observation of the delivery and processing of fish received prior to the closure, and would end on the last day of that month. Observer coverage for the month following would be based on monthly landings projections and thresholds as specified under current regulations at § 679.50, but also may be reduced for that month under the conditions of this action.
The Community Development Quota (CDQ) and American Fisheries Act (AFA) programs' observer coverage requirements found at § 679.50(d)(4) and (5), respectively, currently supersede general observer coverage requirements for shoreside or stationary floating processors, and will continue to take precedence over this allowance for reduced coverage.
Two letters on the April 2, 2002, proposed rule (67 FR 15517) were received that contained a total of 15 unique comments. Comments are summarized and responded to here.
NMFS strives for timely communication with industry regarding the reopening of a closed fishery. Once harvest amounts relative to available total allowable catch are determined, NMFS provides the public notice of any fishery reopening in a manner that is intended to minimize operational costs to industry. In 2002, the reopenings of the GOA pollock fishery occurred only in the Central Regulatory Area (statistical area 630) and were announced within a 3-4 day time period after the fishery closed. NMFS intends to continue to provide this level of effective response to the extent practicable.
This regulation, which bases observer coverage levels on the actual amount of gear fished, rather than days fished, is intended to ensure observer data that are more representative of actual fishing effort. The majority of vessels, for which days fished does reflect average fishing effort over the course of a quarter or season, should see no substantive change in the way they estimate observer coverage needs. Likewise, no more problem should exist with observer availability at the end of the quarter or season than what is currently
To provide clarity in the application of certain provisions of this action, regulatory text in § 679.50(d)(3) and (i)(2) is changed from the proposed rule. Nearly all Observer Program regulations that apply to shoreside processors also apply to stationary floating processors. The proposed rule identified only shoreside processors in the revised language for these paragraphs. Thus, the final rule is changed from the proposed rule to apply to both shoreside processors and stationary floating processors.
The final rule also is changed to reflect revised regulatory text that became effective January 1, 2003, under a separate final rule that extended the Observer Program through December 31, 2007 (67 FR 72595, December 6, 2002). These changes include redesignating proposed changes to paragraphs (i)(2)(v) and (i)(2)(xiii) as final changes to paragraphs (i)(2)(vi) and (i)(2)(xii), respectively. The portion of redesignated paragraph (i)(2)(xii) that addressed an expectation of observer providers to monitor observer performance is deleted because this provision was superceded in the December 6, 2002, final rule. Last, redesignated paragraph (i)(2)(vi) is revised to incorporate the regulatory guidance referenced to in the response to comment 5.
This final rule has been determined to be not significant for purposes of Executive Order 12866.
The amendment of the existing regulations implementing the Interim Observer Program is consistent with the intent and purpose of the Interim Observer Program. These actions follow previous actions to refine observer coverage requirements and improve support for observers. Previous actions addressing these matters were analyzed in the EA/RIR/FRFA for the Interim Observer Program dated August 27, 1996, the RIR/FRFA for the extension of the Interim Observer Program through 1998 dated October 28, 1997, and the RIR/FRFA for the extension of the Interim Observer Program through 2000, dated June 4, 1998. Copies of these analyses are available from NMFS (see
NMFS prepared a FRFA which describes the impact this final rule would have on small entities. A copy of the FRFA is available from the Regional Administrator (see
This action includes measures that will minimize the significant economic impacts of observer coverage requirements on at least some small entities. Vessels less than 60 ft (18.3 m) LOA are not required to carry an observer while fishing for groundfish. Vessels 60 ft (18.3 m) and greater, but less than 125 ft (38.1 m) LOA, have lower levels of observer coverage than those 125 ft (38.1 m) and above. Since the inception of the North Pacific Groundfish Observer Program in 1989, NMFS has strived to mitigate the economic impacts of the observer program on small entities. In doing so, NMFS has not significantly adversely affected the implementation of the conservation and management responsibilities imposed by the FMPs and the Magnuson-Stevens Fishery Conservation and Management Act.
Alaska, Fisheries, Reporting and recordkeeping requirements.
1. The authority citation for 50 CFR part 679 continues to read as follows:
16 U.S.C. 773
(c) * * *
(1) * * *
(vii) Vessels using pot gear. (A) A catcher/processor or catcher vessel equal to or greater than 60 ft (18.3 m) LOA fishing with pot gear that participates for more than 3 fishing days in a directed fishery for groundfish in a calendar quarter must carry an observer:
(
(
(B) Groundfish are required to be retained each day that pot gear is retrieved in order for gear retrieved that day to count toward observer coverage requirements for all catcher vessels and catcher/processors using pot gear and required to carry observers.
(d) * * *
(3) Is subject to observer requirements specified in paragraph (d)(1) of this section that receives pollock or Pacific cod, may reduce observer coverage in the event that a directed fishery for such species closes, subject to the following conditions:
(i) The shoreside or stationary floating processor must maintain observer coverage for 30 percent of all days that groundfish are received or processed, beginning on the fourth calendar day following the day that the directed fishery for pollock or Pacific cod was closed and ending on the last day of the month, except as allowed in this paragraph (d)(3)(iv) of this section.
(ii) Observer coverage for the month following the month with reduced observer coverage will be based on monthly landings projections and thresholds as specified in paragraphs (d)(1) and (2) of this section, but may also be reduced for that subsequent
(iii) Total groundfish landings received by a shoreside or stationary floating processor under reduced observer coverage as authorized under this paragraph (d)(3) may not exceed 250 mt per calendar week.
(iv) If greater than 250 mt in round weight equivalent of groundfish are projected to be received in a given calender week by a shoreside or stationary floating processor during a month with reduced observer coverage, as authorized under this paragraph (d)(3), the shoreside or stationary floating processor must return to observer coverage requirements as specified in paragraph (d)(1) of this section until all fish received during that week is processed. The shoreside or stationary floating processor may then return to reduced observer coverage as authorized under this paragraph (d)(3) for the remainder of the calendar month.
(4) Offloads pollock at more than one location on the same dock and has distinct and separate equipment at each location to process those pollock and that receives pollock harvested by catcher vessels in the catcher vessel operational area.
(i) * * *
(2) * * *
(vi) Observer deployment logistics. (A) An observer provider must provide to each of its observers under contract:
(
(
(B) Except as provided in paragraphs (i)(2)(vi)(C) and (i)(2)(vi)(D) of this section, each observer deployed to a shoreside processing facility, and each observer between vessel or shoreside assignments while still under contract with a certified observer provider company, shall be provided with accommodations at a licensed hotel, motel, bed and breakfast, or with private land-based accommodations for the duration of each shoreside assignment or period between vessel or shoreside assignments. Such accommodations must include an individually assigned bed for each observer for the duration of that observer's shoreside assignment or period between vessel or shoreside assignments, such that no other person is assigned to that bed during the same period of the observer's shoreside assignment or period between vessel or shoreside assignments. Additionally, no more than four beds may be in any individual room housing observers at accommodations meeting the requirements of this section.
(C) Observers may be housed on vessels they will be, or currently are, assigned to for a period not to exceed 24 hours:
(
(
(
(D) During all periods an observer is housed on a vessel, the observer provider must ensure that the vessel skipper or at least one crew member is aboard and that such housing is logistically practical for the observer and the vessel personal. Alternative housing accommodations must be arranged if the conditions in this paragraph (D) are not met or if the observer wants to get off the vessel as soon as it docks or if the vessel operator requests the observer to leave upon docking.
(E) Each observer deployed to shoreside processing facilities shall be provided with individually assigned communication equipment in working order, such as a cell phone or pager for notification of upcoming deliveries or other necessary communication. Each observer assigned to a shoreside processing facility located more than 1 mile from the observer's local accommodations shall be provided with motorized transportation that will ensure the observer's arrival at the processing facility in a timely manner such that the observer can complete his or her assigned duties. Unless alternative arrangements are approved by the Observer Program Office:
(xii)
Office of Surface Mining Reclamation and Enforcement, Interior.
Proposed rule; public comment period and opportunity for public hearing on proposed amendment.
We, the Office of Surface Mining Reclamation and Enforcement (OSM), are announcing the proposed removal of a required amendment to the Pennsylvania regulatory program (the “Pennsylvania program”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). OSM is proposing to remove the required amendment because the Federal regulation upon which the required amendment is based no longer exists. This document gives the times and locations that the Pennsylvania program is available for your inspection, the comment period during which you may submit written comments on the amendment, and the procedures that we will follow for the public hearing, if one is requested.
We will accept written comments on this amendment until 4 p.m., e.s.t. on February 6, 2003. If requested, we will hold a public hearing on the amendment on February 3, 2003. We will accept requests to speak at a hearing until 4 p.m., e.s.t. on January 22, 2003.
You should mail or hand deliver written comments and requests to speak at the hearing to George Rieger at the address listed below.
You may review copies of the Pennsylvania program, this amendment, a listing of any scheduled public hearings, and all written comments received in response to this document at the addresses listed below during normal business hours, Monday through Friday, excluding holidays. You may receive one free copy of the amendment by contacting OSM's Harrisburg Field Office.
George Rieger, Telephone: (717) 782-4036 Internet:
Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Pennsylvania program on July 30, 1982. You can find background information on the Pennsylvania program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Pennsylvania program in the July 30, 1982,
The regulations at 30 CFR 938.16(ss) require Pennsylvania to submit a change to its regulations under the ownership and control provisions concerning an applicant's eligibility for receiving a provisionally issued permit when outstanding violations are present. Specifically, it mandates that Pennsylvania amend 25 Pa. Code 86.37(a)(8) and (11) to require a permit applicant to submit proof that a violation has been corrected or is in the process of being satisfactorily corrected within 30 days of the initial judicial review affirming the violation.
The Federal provision corresponding to the required amendment at 938.16(ss) was formerly located at 30 CFR 773.15(b)(1)(ii). However, on December 19, 2000, we made changes to the Federal rules regarding ownership and control that eliminated this provision (65 FR 79582). In discussing the rule change at 30 CFR 773.15(b)(1)(ii) we noted:
Under the previous rule at § 773.15(b)(1)(ii), the permittee had 30 days from the date that the initial judicial review decision affirmed the validity of the violation to submit proof that the violation was being corrected to the satisfaction of the agency with jurisdiction over the violation. In contrast, final § 773.14(c) requires that the regulatory authority initiate action to suspend or revoke the permit as improvidently issued if the disposition of challenges or administrative or judicial appeals affirms the violation or ownership or control listing or finding. We made this change to ensure prompt implementation of the section 510(c) permit block sanction once the validity of a violation or ownership or control listing or finding is affirmed on appeal. (The previous rule did not specify what action the regulatory authority must take if the permittee did not submit the required proof within 30 days.) 65 FR at 79623.
Rather than requiring the permittee to submit proof that an affirmed violation is being corrected, as required in 30 CFR 938.16(ss), the new rule requires the regulatory authority to initiate action to suspend or revoke the permit if a violation is affirmed. Because the Federal rule change renders the required amendment at 30 CFR 938.16(ss) unnecessary, we are proposing to remove the required amendment. However, at a later date, we will be informing Pennsylvania and other States by letter of any changes required in their
Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the removal of the required amendment satisfies the applicable program criteria of 30 CFR 732.15.
Send your written or electronic comments to OSM at the address given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We will not consider or respond to your comments when developing the final rule if they are received after the close of the comment period (see
Please submit Internet comments as an ASCII or Word file avoiding the use of special characters and any form of encryption. Please also include “Attn: SATS No. PA-139” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Harrisburg Field Office at (717) 782-4036.
We will make comments, including names and addresses of respondents, available for public review during normal business hours. We will not consider anonymous comments. If individual respondents request confidentiality, we will honor their request to the extent allowable by law. Individual respondents who wish to withhold their name or address from public review, except for the city or town, must state this prominently at the beginning of their comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public review in their entirety.
If you wish to speak at the public hearing, contact the person listed under
To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.
If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under
This rule does not have takings implications. In 65 FR 79582, we made several changes to the Federal regulations, including the elimination of the counterpart Federal regulation. Taking all of the changes made into consideration, we noted in that
This rule is exempted from review by the Office of Management and Budget under Executive Order 12866.
The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.
This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA. Section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.
On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse
This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C).
This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507
The Department of the Interior 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
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. For the reasons stated above, this rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local governmental agencies or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that, by removing the required amendment, we are not mandating any State action.
Intergovernmental relations, Surface mining, Underground mining.
Environmental Protection Agency (EPA).
Proposed rule.
EPA proposes to approve the State Implementation Plan (SIP) revision submitted by the Commonwealth of Virginia. EPA is proposing approval of substantive and format changes to Virginia's general administrative provisions and definitions, reorganization and recodification of the general conformity requirements and provisions, recodification of Virginia's oxygenated gasoline regulation, and revisions to the list of technical documents which Virginia incorporates by reference into its air pollution control regulations.
In the Final Rules section of this
Comments must be received in writing by February 6, 2003.
Written comments should be addressed to Harold A. Frankford, Mailcode 3AP20, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the documents relevant to this action are available for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103; and the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia, 23219.
Harold A. Frankford, (215) 814-2108, or by e-mail at
For further information, please see the information provided in the direct final action, with the same title, that is located in the “Rules and Regulations” section of this
Federal Communications Commission.
Proposed rule; notice of inquiry.
This document seeks comment on the effectiveness of the Commission's current regulatory tools in facilitating the delivery of spectrum-based services to rural areas. Specifically, we ask whether and how the Commission could modify its policies to promote the further development and deployment of such services to rural areas. In addition, we request comment on the extent to which rural telephone companies (“rural telcos”) and other entities seeking to serve rural areas have opportunities to acquire spectrum and provide spectrum-based services. This document fulfills a Commission commitment to develop a record on these matters to determine the extent to which the Commission has achieved these statutory goals.
Comments are due on or before February 3, 2003 and reply comments are due on or before February 18, 2003.
All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. Parties also should send four (4) paper copies of their filings to Robert Krinsky, Federal Communications Commission, Room 4-B551, 445 12th Street, SW., Washington, DC 20554. See “Supplementary Information” for comment and reply comment filing instructions.
Robert Krinsky at (202) 418-0660.
This is a summary of the
1. The
2. The Omnibus Budget Reconciliation Act of 1993 added section 309(j) to the Communications Act, authorizing, but not requiring, the Commission to award licenses for use of the electromagnetic spectrum through competitive bidding where mutually exclusive applications are accepted for filing. In 1997, Congress expanded the Commission's auction authority by requiring it to award mutually exclusive license applications for initial applications or construction permits by competitive bidding unless certain specific exemptions apply. Section 309(j) requires the Commission to promote various objectives in designing a system of competitive bidding. A number of those objectives focus on the provision of spectrum-based services to rural areas, and three provisions mention providing the opportunity to rural telcos to acquire spectrum and provide spectrum-based services. For example, section 309(j)(3)(A) requires the Commission to encourage the development and rapid deployment of new technologies, products, and services for the benefit of the public, “including those residing in rural areas.” Section 309(j)(3)(B) directs the Commission to disseminate spectrum licenses among a wide variety of applicants, including “rural telephone companies.” Section 309(j)(4)(D) requires the Commission to ensure that rural telcos are given the opportunity to acquire spectrum and provide spectrum-based services. In addition to the rural service objectives mandated by section 309(j), Congress directed the Commission to pursue other broader public interest goals in designing a system of competitive bidding. Specifically, section 309(j)(3) requires the Commission to promote efficient and intensive use of the spectrum, encourage economic opportunity and competition, and recover for the public a portion of the value of the public spectrum.
3. In an effort to fulfill the rural service objectives set forth in section 309(j), the Commission has adopted a number of policies intended, among other things, to encourage the provision of spectrum-based services to rural areas and the participation of rural telcos in the competitive bidding for spectrum licenses. Specifically, these policies include: (i) The availability of small business bidding credits; (ii) the designation of various sizes of geographic service areas for spectrum licenses; (iii) the opportunity to obtain licenses through service area partitioning and spectrum disaggregation arrangements with existing licensees; and (iv) the adoption of construction benchmark performance requirements. In addition, apart from its obligation under section 309(j), the Commission has expressed support for the provision of telecommunications services to tribal lands. The Commission also established the Rural Radiotelephone Service, which may operate in the paired 152/158 and 454/459 MHz bands, and Basic Exchange Telephone Radio Systems (“BETRS”), which may operate in those same bands as well as on 10 channel blocks in the 816-820/861-865 MHz bands, primarily to facilitate the provision of basic telephone service to remote and sparsely populated areas where wireline service is not feasible.
4. In 1994, the Commission adopted small business bidding credits to encourage broad participation in spectrum auctions. A bidding credit is a payment discount on a winning bid determined at the conclusion of the bidding process. Small business bidding credits are available to businesses — including rural telcos — whose gross revenues do not exceed a specified threshold. These bidding credits are intended to encourage participation in the competitive bidding process by entities that otherwise might have difficulty gaining access to capital. Through the use of small business bidding credits, the Commission has sought to promote the participation of small businesses, rural telcos, and women- and minority-owned firms
5. However, in the
6. Recent statistics indicate that rural telcos have actively participated in spectrum auctions and have had some success in winning licenses. A significant portion of rural telcos that have participated in spectrum auctions have received small business bidding credits. For instance, an examination of the 29 auctions completed by the Commission as of September 18, 2002, that offered small business bidding credits, reveals that 84 percent of the qualified bidders that identified themselves as rural telcos and 79 percent of all qualified bidders were eligible to receive a small business bidding credit. In the Commission's most recent auction for licenses in the lower 700 MHz Band, 89 percent of qualified bidders that identified themselves as rural telcos won licenses. In addition, 77 percent of all winning rural telco bidders in that auction received a bidding credit.
7. In addition to bidding credits, another way in which the Commission has sought to enhance rural telco participation in spectrum auctions is by adopting service areas of varying sizes. Although in many services we offer licenses that cover geographic areas of only one size, in a number of services, we license areas of varying sizes, ranging from small to large, in order to attract a diverse group of prospective bidders. Larger entities, for instance, may seek to acquire licenses that cover whole regions of the country, while other entities, such as rural telcos, may be interested in obtaining licenses to serve only particular rural areas. After seeking comment, the Commission has varied the size of the geographic service area depending upon the nature of the service provided and the likely users. In services for which we have adopted one size of license area, such areas are usually larger than Rural Service Areas (“RSAs”). In determining the appropriate size of a license area, we seek to balance two competing concerns. On one hand, we seek to adopt service areas of a size that results in efficient and intensive use of spectrum resources. On the other hand, we seek to adopt licensing areas that will permit the dissemination of licenses among a wide variety of applicants. The smallest of these geographic service areas are RSAs and Metropolitan Statistical Areas (“MSAs”), of which there are 734 licenses comprising the United States and its territories. Adopting service rules that provide for licenses with small geographic areas allows bidders to target the precise areas they are interested in serving, rather than having to compete for expansive geographic areas that encompass smaller, sought-after areas. The Commission has also licensed spectrum according to Economic Area Groupings (“EAGs”), which make up six licensing areas for the entire country. Some terrestrial wireless services, such as narrowband Personal Communications Services (“PCS”) and 1670-1675 MHz, have geographic service areas that have nationwide coverage. Other geographic service areas fall along a range of intermediate sizes between RSAs and nationwide service areas,
8. The Commission has also adopted partitioning and disaggregation policies to enable service providers, including rural telcos, to acquire spectrum without bidding on licenses that may not be suited to their particular needs. “Partitioning” is the assignment by a licensee of geographic portions of the license. “Disaggregation” is the assignment by a licensee of discrete portions or “blocks” of spectrum of the license. Where permitted by our rules, licensees may partition or disaggregate any of their licensed spectrum to other entities. Obtaining spectrum through partitioning or disaggregation, rather than competitive bidding, is often appealing to service providers with limited financial resources, specific service area needs, or small bandwidth requirements because licenses offered at auction may be more costly, cover larger geographic areas, and have greater bandwidth than desired. For instance, the geographic service area of a license made available at auction may include both urban and rural areas. A rural telco interested in serving only a rural area may seek to obtain spectrum post-auction through partitioning or disagregation, rather than bid for a license covering an area that it does not intend to serve. In this manner, our partitioning and disaggregation policies may help service providers, such as rural telcos, to obtain spectrum tailored to their specialized service area and financial needs. The Commission's analysis of applications for geographic partition and spectrum disaggregation reveals that 13.5 percent of all assignees have voluntarily identified themselves as rural telcos. Our analysis also demonstrates that 13.8 percent of all assignees (including rural and non-rural telcos) claim they are, or will be, serving rural areas.
9. The Commission has sought to enhance service to rural areas by requiring winning bidders of spectrum licensees to meet certain performance requirements. Section 309(j)(4)(B) of the Act specifically directs the Commission to prescribe such “performance requirements” to ensure prompt delivery of service to rural areas, to prevent stockpiling of spectrum, and to promote investment in and rapid deployment of new technologies and services. Performance requirements include construction benchmarks. Construction benchmarks typically require licensees to serve either a specific portion of the geographic service area or a specific percentage of the population in the geographic service area by a certain period of time. In some instances, the Commission has adopted a “substantial service” requirement as its construction requirement. Under this approach, licensees are required to provide “substantial service” to either a geographic service area or to the population within the geographic service area within a specific period of time. The Commission has defined “substantial service” as “service that is sound, favorable, and substantially above a level of mediocre service that would barely warrant renewal.” The “substantial service” requirement was established to assess meaningful service through a measure not based on population or geographic metrics. Substantial service was established for circumstances where the Commission has determined that more flexible construction requirements rather than fixed benchmarks would more likely result in the efficient use of spectrum and the provision of service to rural, remote, and insular areas. The Commission may consider such factors as whether a licensee's operations serve
10. Another step the Commission has taken to encourage the provision of wireless services to rural areas is the retention, in RSAs, of the cellular cross-interest rule, which is designed to protect against the cellular incumbents developing cross interests that may create the incentive and ability to restrict the availability of services in those areas. The cellular cross-interest rule limits the ability of parties to have attributable interests in cellular carriers on different channel blocks in a single geographic area. In its recent reevaluation of this rule, the Commission determined that the cross-interest rule was no longer necessary in MSAs because the cellular duopoly conditions that prompted the rule's adoption no longer existed. However, the Commission found that in RSAs competition to the incumbent cellular licensees was not as developed as in MSAs. Accordingly, the Commission concluded that a combination of interests in cellular licensees serving RSAs would more likely result in a significant reduction in competition in these areas. The Commission therefore decided to retain the cellular cross-interest rule in RSAs, subject to waiver of the rule based on certain conditions. The Commission noted that retention of the cross-interest rule in RSAs does not preclude cellular carriers from obtaining PCS licenses in order to expand capacity or offer advanced services.
11. Under section 309(j), the Commission has a statutory mandate to promote the development and deployment of wireless technologies to rural areas and economic opportunities for rural telcos and other entities seeking to serve rural areas. Indeed, as discussed, the Commission has implemented a number of initiatives toward achieving those goals. We seek to better understand the nature of spectrum supply and demand and the services currently provided and planned to be offered in rural areas. We are also interested in developing a record on whether there are any discrepancies between rural and urban America in the availability, use and cost of wireless services. Approximately 80 percent of the U.S. population lives in metropolitan areas. However, our society is increasingly mobile and, therefore, ubiquitous wireless service is essential, not only for those living in rural areas, but also for individuals whose business and leisure activities take them to all parts of the nation. Thus, it is in the larger public interest to promote seamless wireless service throughout the country. By the
12. At the outset, we request comment on the types of wireless services that are currently provided, and that are planned to be offered, in rural areas. We seek information on the availability of wireless services in rural areas and the providers of such services. We ask commenters to identify which service providers, in addition to rural telcos, are providing wireless services to rural populations. To the extent possible, we request that commenters provide particularized data on wireless coverage and provision of services to rural areas. The more specific data we receive, the better able we will be to tailor our regulations to meet our rural service goals. We particularly seek comment from consumer groups, community groups, State Commissions, local governments and others about any geographic areas that lack adequate wireless coverage, have inadequate quality of service, or inequitable pricing. We also ask commenters to identify the obstacles to providing wireless service in rural areas. In particular, we ask commenters to address the economic viability of building out in rural areas. In what ways, if any, can the Commission modify its rules to promote build-out to rural regions? We also seek comment on whether we should maintain a Web site that would include information that would be helpful to entities seeking to provide wireless services to rural areas. Such a Web site, for instance, could have links to other sites that contain information about programs and financial incentives that are available to those seeking to serve rural populations. Should we maintain a database that would provide information to prospective service providers, including rural carriers, on the availability of spectrum for initial licensing or leasing? In addition to the specific issues identified in the
13. Apart from the rural service mandate set forth in section 309(j), Congress also directed the Commission to pursue other public interest objectives in designing a system of competitive bidding, including the efficient and intensive use of the spectrum, the development and rapid deployment of new technologies and services, the promotion of competition, and the recovery for the public of a portion of the value of the spectrum. In providing comment on how the Commission may best fulfill the rural objectives, we ask that commenters also address how any proposed suggestions would further, or impede, the Commission's achievement of the other public interest goals set forth in section 309(j)(3).
14. Finally, we recognize that issues involving spectrum leasing opportunities are of significant interest to rural telcos. They have expressed interest in gaining access to spectrum usage rights through secondary markets. We plan to address these matters in our proceeding on secondary markets.
15. In addition, we note that rural interests have raised issues related to the controlling interest standard that the Commission adopted in the
16. As discussed, sections 309(j)(3) and 309(j)(4) direct the Commission to promote the development and deployment of spectrum-based services to “rural areas.” The statute, however, does not provide a definition of what constitutes a “rural area.” The federal government has multiple ways of defining “rural,” reflecting the multiple purposes for which the definitions are used. The Commission has used RSAs to define “rural” in certain instances. In the
17. As explained, bidding credits are intended to foster broad participation in the competitive bidding process for licenses. A bidding credit reduces the amount of the winning bid paid for a license by a qualifying entity. The Commission requests comment on whether, and the extent to which, small business bidding credits have facilitated the participation of rural telcos in competitive bidding and the delivery of spectrum-based services to rural areas. Our research demonstrates that rural telcos often qualify as small businesses and are therefore eligible to receive small business bidding credits. Is the availability of small business bidding credits effective in assisting rural telcos to gain access to spectrum? Is the availability of such credits helpful in promoting the provision of spectrum-based services to rural areas? Commenters should support their responses to these questions with data or other empirical information. For instance, if commenters contend that small business bidding credits are not helpful in promoting rural telco participation in Commission auctions, commenters should provide data or statistics supporting that assertion. If empirical evidence demonstrates that small business bidding credits are not effective in facilitating the provision of wireless services to rural areas or the participation of rural telcos in competitive bidding, should the Commission adopt a bidding credit specifically for rural telcos or based on the provision of service to rural areas? For instance, should the Commission adopt a rural service bidding credit modeled after the tribal lands bidding credit? In responding to these questions, commenters should discuss why the use of small business bidding credits is or is not effective in creating opportunities for rural telcos or in spurring the provision of services to rural areas.
18. If the Commission were to adopt a bidding credit specifically for rural telcos, what criteria should it use to determine eligibility for the credit (if it is not based on financial size) and what should be the size of the credit? Is it appropriate, for instance, to adopt a bidding credit for all rural telcos irrespective of how large or well-financed these entities may be? When initially considering the adoption of a rural telco bidding credit in 1994, the Commission found that rural telcos do not
19. The sizes of geographic service areas vary on a service-by-service basis depending upon such factors as the nature of the service and the likely users. We seek comment on the extent to which the size of the geographic service area affects the ability of rural telcos to acquire spectrum licenses through competitive bidding. In addition, commenters should discuss whether, and in what ways, the size of the geographic service area affects the provision of wireless services to rural areas. Commenters should provide data to support their positions.
20. Does the size of the geographic service area affect the provision of wireless services to rural areas by entities other than rural telcos? Large license areas, for instance, may enable nationwide carriers to compete with local or regional carriers in providing service to rural areas. Such large areas may also provide opportunities for new entrants to compete on a wide-area basis in an existing service. With regard to commercial mobile telephony specifically, there is considerable industry support for the notion that relatively large licenses are most efficient. The original geographic scope of cellular, broadband PCS, and certain SMR licenses was small and, as a result, the licenses were assigned to a large number of entities. The predominant trend since then, however, has been for operators progressively to aggregate licenses and build large geographic footprints. The Commission has found that these footprint-expanding transfers and assignments result in important public benefits. Today, six providers approach nationwide status. However, less than 50 percent of the geographic area of the country is served by three or more carriers. Given this evidence, are small license areas inefficient for licenses of spectrum suitable for provision of mobile voice and data service? And for such licenses, do the interests of consumers of rural service diverge from the interests of rural telcos that wish to supply such service?
21. Partitioning and disaggregation policies and regulations are designed to facilitate more efficient and intensive use of the spectrum, including use by rural telcos to serve rural areas. In paragraph eight, we provide statistics regarding partition and disaggregation assignees that have identified themselves as rural telcos, and assignees that claim that they are or will be serving rural areas. However, because we do not require applicants to identify themselves as rural telcos when applying for licenses, we cannot with certainty determine the extent of transactions involving rural telcos based solely on our licensing records. Therefore, we seek comment on the extent to which rural telcos have received licenses through geographic partitioning and spectrum disaggregation. We are interested in learning whether, and in what ways, partitioning and disaggregation policies have been helpful in providing rural telcos with access to spectrum. We also ask for comment on whether, and to what extent, partitioning and disaggregation rules have enhanced the provision of services to rural areas. In responding to these questions, commenters should provide data or other empirical information to support their positions. We also solicit comment on whether partitioning and disaggregation policies enhance competition in the provision of wireless services to rural areas. If partitioning and disaggregation facilitate the provision of services to rural areas, do sufficient incentives exist for both winning bidders and prospective licensees to participate in the spectrum partitioning and disaggregation process? For instance, to what extent do the potential transaction costs involved in partitioning and disaggregation discourage licensees from pursuing such options? We note that some rural interests maintain that such transaction costs and other factors lead licensees to avoid pursuing partitioning and disaggregation agreements. If sufficient incentives do not exist to encourage partitioning of service areas and disaggregation of spectrum, should the Commission adopt additional incentives to motivate parties to pursue these options? For example, should the Commission require that licensees disaggregate or partition under certain circumstances, such as when there is unused spectrum or unserved portions of geographic service areas?
22. Performance requirements, such as construction benchmarks, are intended to help ensure that licensees promptly provide service to potential subscribers. The type of construction benchmark the Commission adopts for a license may determine whether services are deployed expeditiously to rural areas. For instance, depending on the level at which it is set, a population-based requirement may be achievable by a licensee providing service only to the urban areas covered by its license. In contrast, a geography-based benchmark targets the delivery of services to a percentage of a geographic area, rather than to a percentage of the population in an area. Because population is only rarely distributed uniformly across a geographic area, the same percentage requirement under a geography-based standard may result in greater geographic area and population coverage than that percentage under a population-based requirement.
23. We seek comment on whether and how construction benchmarks may be utilized to encourage licensees to deliver wireless services to rural populations. To what extent are our current construction benchmarks effective in ensuring that spectrum-based services are provided to rural areas? In what instances, and under what circumstances, should the Commission adopt a population-based, geography-based, or substantial service construction benchmark? For example, in licensing service areas that are predominantly rural, should the Commission adopt geography-based construction benchmarks? Are there other types of construction benchmarks that would better promote service to rural regions? For instance, should we adopt a separate construction benchmark applicable only to service areas that constitute rural areas? Alternatively, should we revise our current construction benchmarks to permit service providers to serve either smaller portions of the population or service area if they meet a second construction benchmark applicable to the rural portions of a licensee's market? If so, commenters should explain what construction benchmarks we should adopt for the rural portions of the service area? If, as suggested, we were to require licensees to disaggregate or partition unused spectrum or unserved portions of geographic service areas, should the Commission adopt additional construction benchmarks to implement this requirement? If so, what penalties should the Commission impose on licensees for failure to timely meet such additional construction benchmarks? As noted, the Commission has generally accepted certifications of CMRS carriers that they have met their construction benchmarks. To what extent are our self-certification procedures an adequate means of ensuring compliance with our construction benchmark requirements?
24. In addition to employing varying types of construction benchmarks for auctioned licenses, the Commission has also utilized different models with respect to enforcing construction requirements. In the Cellular Radiotelephone Service, initial licensees are given five years to construct facilities and begin providing service to their market. At the end of the initial five-year period the licensee is allowed to “keep what it builds” and the remaining portions of the market
25. For unserved areas in the Cellular Radiotelephone Service, should the Commission adopt a different approach to assigning spectrum usage rights? Specifically, should the Commission adopt a “commons” model, which allows unlimited numbers of unlicensed users to share frequencies, with usage rights that are governed by technical standards but with no right to protection from interference? In addition, should the Commission amend the application filing process for cellular unserved areas to further encourage service providers to operate in rural areas? Furthermore, should the Commission apply the policy it has adopted with respect to unserved areas in the Cellular Radiotelephone Service to other services to promote wireless service in rural areas,
26. Finally, it may be economically inefficient, and thus harmful to customers, to require for each wireless service the same number of competitors in urban and rural areas. This appears to be true, for example, with regard to mobile telephony. How should a performance requirement policy for rural areas address this issue? Economic theory predicts that where licensees are in competitive markets, and no market failures exist and transactions costs are sufficiently low, market forces will drive optimal decisions on what is built, where, and when. In that setting, build-out rules arguably would distort resource allocation, or at best be irrelevant. We ask parties to comment on the application of this economic theory to construction benchmarks that cover rural areas. In particular, for those services and rural markets where there is competition, how should we balance the putative efficiency harm of build-out rules against the potential equity benefit? Moreover, for those services and rural markets where there is a lack of competition,
27. A band manager is a licensee that is specifically authorized to lease its licensed spectrum usage rights for use by third parties through private contractual agreements without having to seek prior Commission approval. Band managers may make their licensed spectrum available to facilitate all types of spectrum use that are consistent with the technical restrictions adopted for the particular band and in accordance with certain requirements imposed on the leasing relationship. The Commission has adopted band manager licensing for several bands. The band manager may subdivide its spectrum in any manner it chooses and make it available to any third party, consistent with the frequency coordination and interference rules specified for the particular band. Band managers are permitted to apportion spectrum based on both geographic area and frequency. Such spectrum apportionment differs from traditional geographic partitioning and spectrum disaggregation because it does not involve the transfer or assignment of the band manager's licenses to other parties. Band manager licensing is an innovative spectrum management approach that can enable parties to acquire spectrum more readily for varied uses. The band manager option will also enable small businesses to acquire spectrum in amounts to serve particular geographic areas, and for periods of time, that better suit their unique characteristics and specialized communications needs. We seek comment on whether rural telcos would be able to obtain more affordable access to spectrum through a band manager than by acquiring licenses directly at auction or through partitioning and disaggregation. We also seek comment on whether rural telcos would be more likely to obtain access to spectrum that is tailored to their particular needs from a band manager than by acquiring licenses in an auction or through partitioning and disaggregation. Comments should also discuss whether band manager licensing would promote service or enhance the quality of service to rural areas.
28. The Commission has developed technical and operational rules throughout its spectrum-based services in order to facilitate efficient use of the radio spectrum while minimizing the potential for harmful interference among licensees. We seek comment on the degree of flexibility that these regulations afford to providers of spectrum-based services in rural areas. Are there aspects of these rules that could be modified or made more flexible to encourage expanded service to rural areas while ensuring that services remain free of harmful interference? For example, would increasing permissible power levels be beneficial for particular types of services in areas where there is less spectrum congestion? Commenters should explain how their proposed changes would satisfy the goal of expanded rural service while not increasing the likelihood of harmful interference to existing licensees.
29. With respect to the Rural Radiotelephone Service, which includes BETRS, we note that as of November 2002, there were 67 active BETRS licenses with facilities in 17 states and 580 active Rural Radiotelephone licenses with facilities relatively uniformly spread throughout the continental United States. Of these, only one BETRS and two Rural Radiotelephone licenses were issued within the last two years. We seek comment on how we might revise the rules for these services to further facilitate the provision of wireless service to rural areas.
30. We also seek comment on the extent to which unlicensed spectrum is being used to provide wireless services to rural communities. We ask commenters to identify the service providers that are utilizing unlicensed spectrum and the types of services they are offering. Further, we seek comment regarding actions the Commission could take to encourage or facilitate the use of unlicensed spectrum. For example, unlicensed operation is generally limited to very low power levels in order to help ensure that the operation does not interfere with licensed services. However, the interference
31. The Commission's rules concerning universal service support for eligible telecommunications carriers (“ETCs”) may impact deployment of wireless services to rural areas. Under the Communications Act, only carriers designated as ETCs under section 214(e) may receive federal universal service support. Under the Commission's rules, wireless carriers may be designated as ETCs and may receive universal service support for providing service to consumers that use wireless service as their only phone service as well as to consumers that also maintain wireline service. The Commission recently asked the Federal-State Joint Board on Universal Service (Joint Board) to review the ETC rules and provide recommendations regarding if and how these rules should be modified. We anticipate that the Joint Board will develop information on the impact of the Commission's ETC rules on deployment of wireless services to rural areas. In this docket, we seek comment generally on whether the Commission's ETC rules have promoted deployment of wireless service to rural areas and greater subscribership in these areas. We also seek to gather factual information. Specifically, we direct the Universal Service Administrative Corporation to provide us with information on the number of wireless carriers currently designated as ETCs, the amount of federal universal service support they have received, and the number of lines they serve. We ask that commenters provide any information available on how many of the customers served by wireless carrier ETCs also maintain wireline phones. How many customers had no phone service whatsoever until they purchased wireless service?
32. This is an exempt proceeding in which
33. We invite comment on the issues and questions set forth. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on or before February 3, 2003, and reply comments on or before February 18, 2003. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies.
34. Comments filed through the ECFS can be sent as an electronic file via the Internet to
35. Accordingly, it is ordered that, pursuant to the authority contained in 47 U.S.C. 151, 4(i), and 303(r) the
Federal Communications Commission.
Proposed rule; notice of inquiry.
This document solicits data and information on the status of competition in the CMRS industry for our Eighth Annual Report and Analysis of Competitive Market Conditions with Respect to Commercial Mobile Services (“Eighth Report”). The Eighth Report will provide an assessment of the current state of competition and changes in the CMRS competitive environment.
Comments are due on or before January 27, 2003 and reply comments are due on or before February 11, 2003.
All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. Parties also should send four (4) paper copies of their filings to Chelsea Fallon, Federal Communications Commission, Room 4-A335, 445 12th Street, SW., Washington, DC 20554. See “Supplementary Information” for comment and reply comment filing instructions.
Chelsea Fallon at (202) 418-7991.
This is a summary of the
1. In 1993, Congress created the statutory classification of Commercial Mobile Services to promote the consistent regulation of similar mobile radio services. At the same time, Congress established the promotion of competition as a fundamental goal for CMRS policy formation and regulation. To measure progress toward this goal, Congress required the Federal Communications Commission (“Commission” or “FCC”) to submit annual reports that analyze competitive conditions in the industry. The
2. The
3. Commercial mobile telephone and mobile data services are provided by a large number of terrestrial CMRS operators as well as mobile satellite operators. In an effort to provide the most complete picture of competition to Congress, the
4. In the
• What is the current structure of the CMRS industry?
• Which entities compete to provide CMRS services?
• What have been the most significant changes or developments in the industry over the past year?
• What is the extent of deployment of CMRS services?
• What is the state of competition in the provision of CMRS services?
• How does competition in the CMRS marketplace vary across the United States, in particular between rural and urban areas?
• What metrics are available that will give us insight into the level of competition in the provision of CMRS services? We are interested in, but not limiting commenters to, information on service availability, the number of subscribers, penetration rates, usage, average revenue per subscriber, churn, quality of service, pricing data and trends, and profits.
• To what extent do key metrics, such subscribership and usage levels, vary among different demographic groups?
• How does CMRS providers' cost of capital affect service availability, including entry into new geographic markets, the quality of service, and the introduction of new services? How is the cost of capital related to the level of competition in the provision of CMRS services? Is it possible to track the cost of capital that different CMRS providers have faced and will continue to face over time?
• How does competition in the CMRS industry in the United States compare to that in other countries? How do key CMRS industry performance metrics, such as subscribership, usage, pricing, quality of service, and service availability, vary between the United States and other countries?
5. Industry members, interested parties, and members of the public should submit information, comments, and analyses regarding competition in the provision of CMRS services. Commenters that wish confidential treatment of their submissions should request that their submission, or a specific part thereof, be withheld from public inspection. In order to facilitate our analysis of competitive trends over time, we request that parties submit current data as well as data that are comparable over time. In addition to the comments submitted in this proceeding, the Eighth Report will also include information from publicly-available and FCC sources.
6. For purposes of the
7. For purposes of the Eighth Report, we seek information on significant trends and developments that have occurred in the mobile telephone sector since the publication of the
8. The
9. Previous
10. We ask for comment on how to improve the methodology we use to determine service availability and evaluate competition. As described, the methodology inherently includes some undetermined degree of overcounting. Do commenters believe that this degree of overcounting is significant and materially affects the determination of mobile telephone service availability and competition? Is there an alternate methodology that could be used to determine service availability and competition?
11. In order to improve the accuracy of our analysis and to reduce overcounting in the Eighth Report, we ask service providers to submit as part of their comments to the Commission, in electronic format, the coverage maps that they already make available to the public. Specifically, we request carriers submit as part of their comments the maps they employ to advertise their coverage areas in brochures and on their web sites in a geo-referenced, mapable format, such as MapInfo table (.tab) or Tagged Image Format (.TIF) files, on a CD sent to the Commission. The Commission has used the contours filed by 800 MHz cellular licensees to determine the availability of analog mobile telephone service, and therefore does not require additional maps showing analog coverage from cellular licensees. However, the Commission requests that cellular licensees submit as part of their comments their publicly-available maps in the aforementioned format showing where they offer reliable digital service. In addition to the coverage maps that carriers make available to the public, do carriers have maps with more detailed coverage information that are not available to the public? In the alternative, we ask carriers to please indicate in their comments if they do not have such maps. Would carriers or other parties be willing to submit such maps as part of their comments?
12. Moreover, carrier provision of their publicly-available coverage maps in electronic, geo-referenced format with clearly-defined boundary lines, would enable the Commission to examine more precisely the smaller geographic areas underlying the coverage boundaries, such as zip code areas or census block groups. These small geographic areas could therefore allow the Commission to make more accurate estimates of the population and land area covered by a certain number of carriers or served by a digital network.
13. In conducting our analysis of service availability and competition, we seek information about the extent to which consumers are able to, and do, purchase service plans from carriers whose networks do not cover their residential location or billing address. Carriers frequently query potential subscribers about the zip code of their billing address. Should this be taken as an indication that carriers do not provide service to consumers whose billing address zip codes are outside the range of the carriers' network coverage areas, even if such consumers wish to purchase service plans in order use their phones inside the coverage areas? To what extent are mobile telephone subscribers' residential locations or billing addresses located outside of their carrier's network coverage area? To what degree would an analysis of the population of smaller geographic areas that underlie carriers' network coverage boundaries undercount those subscribers? Furthermore, would the use of other, smaller geographic areas in addition to or in place of counties be appropriate in analyzing service availability? If so, which areas would be appropriate? Do data currently exist on this basis?
14. In order to continue to improve the accuracy of our analysis, we seek information on whether carriers market service to new customers in all of the geographic areas in which they have coverage. Do carriers provide coverage in certain areas, such as near major roads, where they do not also market service to residents? If the latter is true, our analysis could be further improved if carriers indicated the parts of their coverage areas in which they compete to offer new service and the parts that are used only to provide coverage to traveling subscribers based in other locations. In addition to employing more accurate coverage maps, in what other ways could our analysis of service availability be improved?
15. We also seek data on the relationship between competition and the availability of roaming for wireless customers. To what extent do carriers have agreements that enable their customers to use automatic roaming throughout the United States? Are there geographic areas in which some carriers do not have automatic roaming agreements? If so, where are those areas and is there any correlation to the number of wireless providers operating in those areas? Are rural customers more affected than non-rural customers? How many customers use manual roaming? Where are those customers located when they use manual roaming, and how frequent is their usage?
16. Finally, we seek comment on the fact that our service availability analysis relies on information reported by service providers, including their news releases, filings with the SEC, Web site coverage maps, and network buildout notifications filed with the Commission. In addition, there are independent web sites and public reports that include some information about service coverage and dead zones. There are risks to relying exclusively on data supplied by parties with a financial stake in the use of such data as part of Commission decisions. Since we, in some cases, report on information supplied only by one or two sources, we
17. In addition to analyzing service availability by all facilities-based mobile telephone carriers, previous
18. The
19. One of the key metrics that provides an indication of the demand for mobile telephone service is the total number of subscribers. Prior to the
20. We seek comment on the use of NRUF data to estimate the total number of U.S. mobile telephone subscribers. We also seek comment on the continued use of CTIA's estimate from its semi-annual survey. Furthermore, we request information from commenters on other data sources that are available to determine the number of U.S. mobile telephone subscribers and whether parties are willing to provide the data. In addition, we request subscribership data that would assist in a greater understanding of the competitive landscape, such as penetration rates by age cohorts or household penetration rates.
21. The Commission also collects subscribership data as part of the local competition and broadband data gathering program. Mobile telephone carriers with more than 10,000 facility-based subscribers in a state are required to report their number of subscribers in those states twice a year to the Commission. Using this data, the Commission reported that mobile telephone carriers had 122.4 million U.S. subscribers as of December 31, 2001. For purposes of the Eighth Report, we seek comment on whether this data should be used to draw any conclusions about the mobile telephone sector, or whether it undercounts subscribership to such a degree that it should not be employed for such purposes.
22. NRUF data is submitted to the Commission on a rate center basis. Rate center boundaries have in large part been determined by incumbent local exchange carriers for their own network management purposes. Because rate center boundaries are relatively small, the NRUF data allows the Commission to make sub-national or regional estimates of mobile telephone subscribership and penetration. However, there are a number of disadvantages associated with using NRUF data for this purpose. First, because CMRS carriers have wide latitude in choosing to which rate center to assign a phone number across a large geographic area, rate center boundaries are not necessarily indicative of where a phone number assignee, and hence a mobile telephone subscriber, lives, works, or uses her phone. In addition, rate center boundaries are not coterminous with other boundaries frequently used in mobile telephone analyses, such as counties, Cellular Market Areas (“CMAs”), or BTAs. Furthermore, in order to protect the confidentiality of the companies submitting NRUF data, the Commission does not report the number of subscribers for geographic areas in which there are three or fewer carriers.
23. For purposes of the
24. We ask for comment on how to determine which geographic area or areas should be used, for purposes of the Eighth Report, to calculate mobile telephone subscribership and penetration rates. We request opinions on the appropriateness of using EAs for such calculations. Would other geographic areas be appropriate to use in place of or in addition to EAs, such as states, Major Trading Areas (“MTAs”), BTAs, CMAs, or counties, noting the caveats of the NRUF data
25. To analyze mobile telephone usage, the Commission has used MOUs as a key metric in the previous
26. All of the MOU sources presented in the
27. Average monthly revenue per subscriber, often referred to as average revenue per unit or “ARPU”, is another key metric presented in the
28. CTIA reported that ARPU declined almost continuously from 1987 to 1999, going from a peak of $98.02 in December 1988 to a low of $39.43 in December 1998. However, since 1999, ARPU has been increasing, rising to $47.37 in December 2001. The
29. Churn, a fourth key metric used in the
30. We seek comment on the use of churn rates as a tool in our analysis of the mobile telephone industry, including to what extent churn rates are a reflection of competition in this industry. We ask if there are additional analyses that can be performed or conclusions that can be drawn from churn data in the Eighth Report. Do commenters believe the churn data we have included in previous reports is reliable?
31. The Telephia data presented in the
32. The
33. We seek comment on the use of these various pricing estimates as a tool in our analysis of the mobile telephone industry, including to what extent price decreases are evidence of competition in the mobile telephone sector. We ask for feedback on the sources of the pricing data used in the
34. The
35. We seek information on which carriers offer nationwide pricing plans, particularly those that are not typically described as being nationwide operators, and request descriptions of the terms of such plans. We ask carriers that offer nationwide pricing plans whether they offer the same rates and terms to consumers throughout all parts of the country where they offer such plans, including Alaska, Hawaii, and Puerto Rico. Furthermore, do carriers charge different prices—both monthly and per minute—or offer different terms for their local and regional plans across the various areas that they serve? If so, are these geographic variations substantial, and what are the major reasons for such variations?
36. Is pricing data available on whether certain types of pricing plans are associated with specific demographic cohorts or types of users? For example, do subscribers with lower personal or household incomes tend to purchase pricing plans with lower monthly fees? Are particular plans associated with teenagers or college students? Are prepaid services used by a group of consumers with similar characteristics? Have the introduction of new types of pricing plans increased mobile telephone penetration among specific demographic groups or in certain geographic areas?
37. Since the release of the
38. To the extent that it is meaningful to analyze mobile telephone service availability in rural areas, we seek comment on how best to determine whether competition has developed successfully in rural areas. We invite parties to comment on what data is available to address this issue and whether they believe there is meaningful competition among mobile telephone providers in rural areas.
39. The primary difficulty for the Commission in examining the state of competition in rural areas has been the lack of sub-national data. Prior to the release of the
40. Do services, pricing plans, and technologies differ between rural areas and urban areas? Do the providers who serve both areas offer the same products and prices in each type of area?
41. In order to analyze mobile telephone service availability and competition in rural areas, it is necessary to first define what geographic area(s) constitutes “rural.” The federal government has multiple ways of defining rural, reflecting the multiple purposes for which the definitions are used. The Commission has used Rural Service Areas (“RSAs”) to define “rural” in certain instances. In the CMRS spectrum cap proceeding, the Commission designated RSAs as rural areas and stated, “Other market designations used by the Commission for CMRS, such as [EAs], combine urbanized and rural areas, while MSAs and RSAs are defined expressly to distinguish between rural and urban areas.” Since passage of the Telecommunications Act of 1996, the Commission generally has used the statutory definition to determine which local exchange carriers can be classified as rural telephone companies. That definition uses a range of standards including the population of a jurisdiction and the number of access lines serving communities of various sizes.
42. In the
43. We request comment on whether and how the Commission should define rural for purposes of the Eighth Report. What elements should the Commission consider when defining “rural”? Should there be a single delineation between rural and non-rural areas, or should rural be defined on a continuum? For example, should the Eighth Report define different degrees of “ruralness” based on population density?
44. As mentioned, the Commission analyzed service availability in rural areas in the
45. When examining service availability in rural areas, should the Commission continue to use multiple definitions of rural for purposes of the Eighth Report? Were the three definitions employed in the
46. In addition to addressing rural issues generally, we also take this opportunity to focus on access to telecommunications services by individuals living on tribal lands. In our
47. We seek comment on whether the Eighth Report should specifically address the state of mobile telephone competition on tribal lands. If so, what issues are present on tribal lands that warrant separate consideration from other rural areas with similar population levels? In examining services available on tribal lands, should we limit our consideration to services available to individuals who live within federally-recognized tribal lands, or should we also include other nearby areas where Native Americans may live? If so, we ask that commenters provide details regarding which areas should be included in our discussion, and provide information or information sources for obtaining sufficiently granular data about services in such areas.
48. As discussed, the
49. At this point, we request data for all of these metrics on a sub-national level and ask what the data show about differences between urban and rural areas in terms of demand and competition. Does information currently exist demonstrating differences in subscribership, MOUs, ARPU, churn, and prices in urban versus rural areas? If so, would commenters be willing to provide such information?
50. Beginning with the
51. The Commission knows of few studies that have been done comparing mobile telephone pricing in urban versus rural areas. However, Econ One has completed one study, which it presented at the Public Forum and which we included in the
52. Finally, to what extent do nationwide carriers affect prices and competition in rural areas, even if such carriers do not offer service in those areas? Do these carriers create the same competitive pressures in rural areas that they do in urban areas?
53. Mobile telephone service has been considered both a complement to and a substitute for wireline services. Historically, most consumers used their mobile phones as a mobile complement to their wireline phones by using their mobile handsets only when away from their homes or places of work. However, as noted in the
54. In order to track and analyze competition between mobile telephone and wireline services more effectively, we request data on (i) The number of mobile telephone subscribers who do not subscribe to residential wireline service, (ii) the percentage of consumers' total monthly voice communication minutes that are made from mobile phones, (iii) the percentage of consumers' total monthly long distance minutes that are made from mobile phones, (iv) the percentage of mobile telephone subscribers' calls and minutes that occur in their homes using their mobile phones, (v) the percentage of both mobile telephone and wireline calls and minutes that terminate on mobile phones, and (vi) demographic data on which groups of consumers have allocated a substantial portion of their voice communications to mobile telephone service. Should the Commission gather additional data, perform additional analyses, or draw new conclusions on wireless-wireline competition?
55. The
56. Satellite operators offer mobile telephone services which, from a consumer's point of view, have many of the same characteristics as terrestrial-based mobile telephone services. At least four carriers currently provide mobile satellite services (“MSS”) in the United States: Globalstar Telecommunications LTD, Iridium Satellite LLC, Inmarsat Limited, and Mobile Satellite Ventures. We request that these carriers submit as part of their comments information detailing the geographic areas of the United States in which they provide coverage as well as those areas in which they offer service to new customers. Taking into account such information on MSS service availability, we seek comment on the extent of competition among MSS providers. To what extent do MSS providers compete with terrestrial-based mobile telephone providers? Are MSS services substitutes for terrestrial-based mobile telephone and data services? Should MSS providers be considered an additional service provider in the analysis of service availability in the Eighth Report, or do they offer services that generally are not substitutes for services provided by terrestrial CMRS carriers, even though they fall under the legal umbrella of CMRS?
57. Resellers offer service to consumers by purchasing airtime at wholesale rates from facilities-based providers and reselling it at retail prices. According to information provided to the Commission in its ongoing local competition and broadband data gathering program, the resale sector accounted for approximately 5 percent of all mobile telephone subscribers as of December 2001. To what extent are resellers creating competitive pressures in the mobile telephone sector? In 2002, WorldCom, which claimed to be the largest reseller of post-paid wireless service the United States, announced that was abandoning the resale business. Who are the remaining major resellers? How many subscribers do they have? From a consumer perspective, what are the benefits of buying from a reseller versus a facilities-based provider? Are resellers selling to specific demographic
58. The
59. The international comparisons in the
60. The
61. We also invite suggestions on additional performance measures and associated data sources for comparing the U.S. mobile telephone sector with those in other countries.
62. For purposes of its
63. For purposes of the Eighth Report, we seek information on the significant changes and developments that have occurred in the mobile data industry since the publication of the
64. In analyzing competition within the mobile data industry, it is necessary to consider the relationship between mobile data and mobile telephone service. Both services are offered by many of the same providers using the same networks and end user devices, yet differences in the nature of the two services exist. Hence, to what extent are the mobile data and mobile telephone sectors separate, and to what extent are they converging?
65. Related to this issue of convergence, the
66. The
67. The types of services discussed in the
68. In addition to seeking data on the level of competition among different mobile data services, we request information on the extent to which mobile data services compete with data services offered through wireline devices. For example, have mobile e-mail services been a substitute for e-mail access on a personal computer offered through a dial-up, Digital Subscriber Line (“DSL”), or cable modem connection?
69. Furthermore, we request data on the growth and success of the various mobile data services. Which services are most popular with consumers and have the highest adoption rates? In what
70. In addition to requesting comment on mobile data services generally and the economic relationship between these services, we also seek information related to specific mobile data services.
71. Traditional paging service consists of a one-way data communication sent to a mobile device that alerts the user when it arrives. The communication usually consists of a phone number for the user to call, but could also contain a short text message or information update. As discussed in the various
72. As explained in the
73. We invite commenters to address the extent to which users have a choice of which content they receive. Can users of mobile web services access any web site, only those have been re-designed for access on mobile device, or only those with whom the carrier has a content agreement? Approximately how many web sites have been specially designed for use on a mobile device?
74. Have there been any notable technological developments in the past year that have facilitated a greater availability of mobile web browsing services?
75. As mentioned in the
76. Furthermore, as of mid-2002, most of the major mobile telephone carriers had introduced the ability to exchange text messages with subscribers on other carriers' networks. We seek information on how this intercarrier interoperability has affected SMS adoption rates and the volume of SMS traffic.
77. In addition to offering SMS, some carriers offer IM services. Instant messaging services, such as AOL Instant Messenger (“AIM”) and MSN Messenger, enable users to send and receive messages within a community of users, creating a chat-style atmosphere, whereas SMS is a communication between two individuals. From their mobile devices, AIM users are able to tell whether or not someone from their “buddy list”—a list of other AIM users with whom the initial user communicates—is online. In addition, AIM users can communicate with their buddies regardless of whether they are on a desktop computer or a mobile telephone. AT&T Wireless, Sprint PCS, T-Mobile, and Palm have offered AIM to their users, while Verizon Wireless and Cingular Wireless have offered MSN Messenger. Unlike with SMS, open access or interprovider interoperability is not available with IM services; AIM users cannot exchange messages with users of MSN Messenger. To what extent have these access and interoperability issues affected demand for instant messaging services in the mobile data sector?
78. As mentioned, the Commission invites comment of the extent to which the various mobile data services compete with each other. In particular, we ask to what extent text messaging and e-mail are substitutes for each other. In what ways do the features and capabilities of the two services vary?
79. As discussed in the
80. With regard to both types of services, we seek information on how much data or content a user can download, and how quickly and reliably. Furthermore, are these services secure? What level of security and/or encryption is offered by these various services?
81. Mobile data services, and in particular mobile Internet services, are offered on a variety of end-user devices. Which devices are used most for mobile Internet access? Furthermore, do any of the features of mobile data devices—such as battery life, data storage capacity, and screen size—constrain the ability of users to access mobile Internet services, and therefore limit the demand for such services? Which features on which devices might limit mobile Internet access the most?
82. In addition to seeking information on the capabilities of the various mobile data services discussed, we also request data on the number of subscribers to and users of mobile Internet services. How many people in the United States subscribe to or use any type mobile Internet service? Do most mobile Internet users also subscribe to mobile telephone service? How many people use the different types of mobile data services, including paging, SMS, IM, web browsing, e-mail, and corporate server access? In the
83. How many people subscribe to or use higher-speed mobile Internet services provided over 1xRTT and GPRS networks? How does subscribership to the various mobile data services vary by geographic region and among various demographic groups?
84. In preparation for the Eighth Report, we request information on the availability of mobile data services offered over 2G mobile networks, as well as higher-speed mobile data
85. Do carriers offer any type of mobile Internet service in any portion of their service areas? In what percentage of their license and network footprints do carriers offer mobile Internet services? Are the same types of services available in all areas? What percent of carriers' licensed and network POPs are located in the areas where mobile Internet services are available? Does mobile data service availability vary between urban and rural areas?
86. The
87. Furthermore, we request comment on the actual data transfer speeds that most users experience with GPRS and with 1xRTT. Do the two technologies differ in this respect? To what degree are individual users' data transfer speeds depleted as more users log on to the network in a given area?
88. Finally, we request information on the extent to which mobile data providers are upgrading or plan to upgrade their networks with additional next generation technologies beyond GPRS and 1xRTT, such as EDGE, WCDMA, and 1X-EV.
89. In analyzing competition in the mobile data industry and the general evolution of this sector, we have examined the prices charged by providers for various mobile data services. While the analysis of pricing in the mobile telephone sector includes an estimate of per-minute pricing, such an estimate is not feasible in the mobile data sector given the variety of services and the variety of pricing techniques used by carriers. Therefore, the previous
90. For the Eighth Report, we request data from providers on the prices they charge for the various mobile data services they offer. How have these prices changed over time?
91. In addition to asking for actual pricing data, we also seek comment on the general trends related to mobile data pricing. To what extent do providers bundle mobile data services with each other and with voice service? Do providers offer mobile data services as add-ons service to voice service or as standalone services? Are mobile data services offered on a per-use basis or on a monthly subscription basis? Finally, do providers charge for mobile data services by the megabyte of data, by the minutes of usage, by the incremental service, and/or do they offer a flat rate for unlimited usage?
92. In addition, we seek information on the degree to which mobile data providers, in their pricing plans and marketing efforts, distinguish between mobile Internet services offered over 2G networks and those offered over next-generation 1xRTT and GPRS networks.
93. Are the prices of mobile data services generally the same across all the geographic areas in which carriers offer them? Do the prices vary by region, in particular between urban and rural areas? To the extent that they do vary by region, what are the reasons for this?
94. Over the past year, the WLAN technology, Wireless Fidelity or WiFi, has begun to play an increasingly important role in the mobile data industry. WiFi operates in the unlicensed spectrum bands using primarily the 802.11 wireless technology standards and allows data transfer speeds of up to 11 Mbps. While WiFi is not a CMRS service per se, we included a discussion of it in previous
95. Users of mobile devices with WiFi capabilities or attachments can establish a high-speed, wireless connection to the Internet within a variety of settings, including restaurants, coffee shops, hotels, airports, convention centers, office buildings, and college campuses. These buildings or campuses generally connect to the Internet via a high-speed wireline technology such as a T-1 line, and WiFi users lose their high-speed wireless connections once they exit these settings. Given both the advantages and limitations of WiFi, do commenters believe that it competes with commercial, interconnected mobile data services? Does WiFi have the potential to compete with these services to a greater extent in the future?
96. For purposes of the Eighth Report, we request data on the current extent of WiFi deployment and usage. How many people or what percent of the U.S. population subscribes to or uses WiFi services? In how many locations is WiFi currently available, and in which types of locations do most users establish WiFi connections? What data transfer speeds do most users experience with the various WiFi technology standards, including 802.11a, 802.11b, and 802.11g? In addition, what are the major drawbacks of WiFi access? To what degree are WiFi connections secure for end users? What, if any, interference problems are associated with WiFi access? Are voice services possible and available using WiFi connections?
97. Finally, we seek information on the other uses of unlicensed spectrum besides WiFi. Are both voice and data services available through these other types of connections? What is the extent of deployment of these other services?
98. In addition to providing an analysis of competition in the commercial mobile services industry, the
99. With the
100. This is an exempt proceeding in which ex parte presentations are permitted (except during the Sunshine Agenda period) and need not be disclosed.
101. We invite comment on the issues and questions set forth. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on or before January 27, 2003, and reply comments on or before February 11, 2003. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (May 1, 1998).
102. Comments filed through the ECFS can be sent as an electronic file via the Internet to
103 Accordingly, it is ordered that, pursuant to the authority contained in sections 4(i), 4(j), and 403 of the Communications Act of 1934, as amended, the
Forest Service, USDA.
Notice of meeting.
Pursuant to the authorities in the Federal Advisory Committee Act (Pub. L. 92-463) and under the Secure Rural Schools and Community Self-Determination Act of 2000 (Pub. L. 106-393) the Idaho Panhandle National Forest's Idaho Panhandle Resource Advisory Committee will meet Friday, January 17, 2003 at 9:30 a.m. in Coeur d' Alene, Idaho for a business meeting. The business meeting is open to the public.
January 17, 2003.
The meeting location is the Idaho Panhandle National Forest's Supervisor's Office, located at 3815 Schreiber Way, Coeur d; Alene, Idaho 83815.
Ranotta K. McNair, Forest Supervisor and Designated Federal Official, at (208) 765-7369.
The meeting agenda will focus on reviewing project proposals for fiscal year 2003 and recommending funding for projects during the business meeting. The public forum begins at 1 p.m.
Import Administration, International Trade Administration, Department of Commerce.
Notice of Rescission of Antidumping Duty Administrative Review.
January 7, 2003.
Kevin Williams or Timothy Finn at (202) 482-2371 or (202) 482-0065, respectively; AD/CVD Enforcement, Office 4, Group II, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230.
Unless otherwise indicated, all citations to the Tariff Act of 1930, as amended (the Act), are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Act by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations to the Department of Commerce's (the Department's) regulations are to the regulations at 19 CFR Part 351 (2002).
On September 3, 2002, the Department published a notice of opportunity to request an administrative review of the antidumping duty order on stainless steel wire rod (SSWR) from Spain (67 FR 56267).
Pursuant to a request made by Carpenter Technology Corp. (the petitioner), the Department initiated an administrative review of the antidumping duty order on SSWR from Spain for the period September 1, 2001, through August 31, 2002 on October 18, 2002 (67 FR 65336)(October 24, 2002)). On December 6, 2002, the petitioner withdrew its request for the administrative review of SSWR from Spain.
Section 351.213(d)(1) of the Department's regulations provides that a party that requests an administrative review may withdraw the request within 90 days after the date of publication of the notice of initiation of the requested administrative review. The Department is rescinding the administrative review of the order on SSWR from Spain for the period September 1, 2001 through August 31, 2002 because the requesting party has withdrawn its request for this administrative review within the 90-day time limit and no other interested parties have requested a review of SSWR from Spain for this time period.
This notice is in accordance with section 777(i)(1) of the Act and 19 CFR 351.213(d)(4).
Pursuant to Section 6(c) of the Educational, Scientific and Cultural Materials Importation Act of 1966 (Pub. L. 89-651; 80 Stat. 897; 15 CFR part 301), we invite comments on the question of whether instruments of equivalent scientific value, for the purposes for which the instruments shown below are intended to be used, are being manufactured in the United States.
Comments must comply with 15 CFR 301.5(a)(3) and (4) of the regulations and be filed within 20 days with the Statutory Import Programs Staff, U.S. Department of Commerce, Washington, DC 20230. Applications may be examined between 8:30 a.m. and 5 p.m. in Suite 4100W, U.S. Department of Commerce, Franklin Court Building, 1099 14th Street, NW., Washington, DC.
National Weather Service (NWS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice and request for proposals.
The CSTAR Program represents an NOAA/NWS effort to create a cost-effective continuum of basic and applied research to operations through collaborative research between operational forecasters and academic institutions which have expertise in the environmental sciences. These activities will engage researchers and students in applied research of interest to the operational meteorological community and improve the accuracy of forecasts and warnings of environmental hazards by applying scientific knowledge and information to NWS products and services. The NOAA CSTAR Program is a contributing element of the U.S. Weather Research Program. NOAA's program is designed to complement other agency contributions to that national effort.
Proposals must be received by the NWS no later than close of business February 21, 2003. We anticipate review of full proposals will occur during March 2003, and funding should begin during early summer 2003 for most approved projects. June 1, 2003, should be used as the proposed start date on proposals, unless otherwise directed by the Program Officer. Applicants should be notified of their status within 3 months of the closing date. All proposals must be submitted in accordance with the guidelines below. Failure to follow these guidelines will result in proposals being returned to the submitter.
Proposals must be submitted to NOAA/NWS; 1325 East-West Highway, Room 15330; Silver Spring, Maryland 20910-3283.
Sam Contorno (see
15 U.S.C. 313; 49 U.S.C. 44720 (b); 33 U.S.C. 883d; 15 U.S.C. 2904; 15 U.S.C. 2934.
This program is designated under Catalog for Federal Assistance number 11.468, Applied Meteorological Research.
NOAA/NWS believes its warning and forecast mission will benefit significantly from a strong partnership with outside investigators. Current program plans assume the total resources provided through this announcement will support extramural efforts through the broad academic community. Because of Federal budget uncertainties, it has not been determined how much money will be available through this announcement. Proposals should be prepared assuming an annual budget of no more than $125,000. It is expected that approximately four awards will be made, depending on availability of funds. This program announcement is for projects to be conducted by university investigators for a 1-year, 2-year, or 3-year period. When a proposal for a multi-year award is approved, funding will initially be provided for only the first year of the program. If an application is selected for initial funding, the NWS has no obligation to provide additional funding in connection with that award in subsequent years. Funding for each subsequent year of a multi-year proposal is at the discretion of the NWS. It will be contingent upon satisfactory progress in relation to the stated goals of the proposal to address specific science needs and priorities of the NWS and the availability of funds. Applications must include a scope of work and a budget for the entire award period. Each funding period must be discrete and clearly distinguished from any other funding period.
The funding instrument for extramural awards will be a cooperative agreement since one or more NOAA/NWS components—forecast offices, National Centers for Environmental Prediction (NCEP) service centers, or regional headquarters—will be substantially involved in implementation of the project. Examples of substantial involvement may include, but are not limited to, proposals for collaboration between NOAA scientists and a recipient scientist and/or contemplation by NOAA of detailing Federal personnel to work on proposed projects. Funding for non-U.S. institutions and contractual arrangements for services and products for delivery to NOAA are not available under this announcement. A matching share is not required by this program.
The long term objective of the CSTAR Program is to improve the overall forecast and warning capabilities of the operational hydrometeorological community by addressing the following national science priorities through collaborative efforts between the NWS and academic institutions: Quantitative precipitation estimation (QPE) and forecasting (QPF), including precipitation type and probabilistic QPF; Flash flood and probabilistic river prediction; Prediction of seasonal-to-interannual and decadal climate variability, and the impacts of these
Individual NWS Regions and NCEP service centers have a subset of these science priorities due to differences in factors such as topography, weather regimes, and mission.
NOAA will give sole attention to individual proposals addressing the identified science priorities from NWS Regions and NCEP service centers as listed below. Proposals must clearly specify which primary science priorities are being addressed.
Since a goal of this call for proposals is to foster long-term collaborative interactions between a university and NWS operational offices/NCEP service centers, a proposal must be submitted by at least two principal investigators (PIs) from the same college or university. Proposals submitted jointly by two or more separate colleges or universities are not allowed. At least two of the PIs within this program must be full, assistant, or associate college or university professors with substantial documented involvement in the proposal. Proposals should clearly state the role of each PI in the project.
Except for researchers who are associate, assistant, or full professors at the Naval Postgraduate School or other federally funded educational institutions, Federal Government employees are not allowed to be listed as PIs, although collaboration between the academic community and NOAA within the project is strongly encouraged.
A proposal must contain at least two distinct subtasks addressing one or more of the science priorities listed by a NWS Region or NCEP service center. PIs must clearly address the science and technology transfer process contained within the proposal. This includes their interactions with operational NWS units, including weather offices, River Forecast Centers, NCEP service centers, and regional offices, with the specific goal of improving operational services.
The names, affiliations, and phone numbers of relevant NWS regional/NCEP focal points are provided. Prospective applicants should communicate with these focal points for information on priorities within regional science priorities. Focal points cannot assist in the conceptual design and specific elements to be included in a proposal. Applicants should send completed proposals to the NOAA/NWS program office identified earlier rather than to individual focal points.
NWS Eastern Region has identified the following science priorities to be addressed by proposals:
The roles of unique geomorphic influences on weather problems such as the type, amount, and intensity of precipitation associated with the complex terrain of the Appalachian Mountains, Atlantic Seaboard, and the Great Lakes. The interaction of these terrain features with large scale weather systems such as winter storms, hurricanes, and closed lows.
The development of more accurate, region-specific conceptual models for tornado, hail, high wind (both convective and synoptic), flash flood, and localized heavy snow events. Detailed investigation of the roles of mesoscale phenomenon such as gravity waves, thermal and moisture boundaries, and localized instabilities during these events. Improved understanding of low-topped severe convection and associated tornado development.
Cloud physics and associated microphysical processes and their role in determining precipitation type and snowfall efficiency.
The relationship of land-falling tropical storms and hurricanes to severe weather and heavy precipitation resulting in flooding and flash flooding.
The processes of snow melt and river ice formation and break-up and their roles in widespread river flooding. The development of high resolution surface analysis systems and the application of these analyses to verification of gridded hydrometeorological forecasts.
The development of improved methodologies for forecasting the onset and dissipation of fog and low ceilings for different geographical locations across the eastern United States.
The processes that lead to high winds, waves, and flooding near the Atlantic Coast, Chesapeake Bay, and Great Lakes. Innovative approaches to formulate, produce, display and deliver high-resolution forecasts and products, an evolving priority of the user community throughout the heavily populated eastern United States. Develop innovative methodologies to communicate forecast uncertainties to a wide variety of users.
Kenneth Johnson, NOAA/NWS/Eastern Region Scientific Services Division, 631-244-0136, or on the Internet at
The NWS Southern Region science priorities to be addressed by proposals are as follows:
Development of improved techniques for the prediction of freezing and frozen precipitation events in the NWS Southern Region, including timing, areal extent, intensity and amount.
Development of diurnal lightning and cloud climatologies stratified by weather regime to better predict the onset, spatial coverage, and duration of precipitation, especially under weak synoptic forcing.
Development of improved techniques to forecast and monitor heavy-rain events.
Development of relationships between land falling tropical cyclones and associated severe weather, including heavy precipitation, flooding and flash flooding, throughout the southern United States.
Development of improved techniques to observe and forecast winds and waves in the coastal environment. Improved understanding of the influences of the complex terrain of the southern Appalachians, the Texas Hill Country, the Mexican Plateau, and the Gulf Coast on weather problems such as type, amount, duration and intensity of precipitation and resultant flash flooding.
Development of optimal strategies for using mesoscale models to accurately predict the effects of topography and other surface forcing on local weather. Improved methodologies to better predict the development and duration of stratus, fog and other conditions which result in instrument flight rule (IFR) flying conditions in the NWS Southern Region.
Development of methodologies for use of Doppler weather radar (WSR-88D) and multi-sensor technology to detect/identify storm features leading to, and/or associated with, the development of weak (F0 and F1) tornadoes and waterspouts which are characteristic of tropical and semi-tropical environments.
Development of methodologies for the use of Doppler weather radar and other multi-sensor technology to detect precursor conditions and enhance forecast capabilities for improved
Development of optimal WSR-88D scan strategies and adaptable parameter settings for accurately estimating heavy precipitation amounts.
Development of techniques to improve hydrologic modeling and prediction for Southern U.S. rivers and streams, including calibration of models, improved distributive modeling techniques, and improved soil moisture accounting. Development of methodologies to better predict the type, duration, and severity of arctic outbreaks that result in damaging freezes affecting the NWS Southern Region.
Development of improved methods for utilizing data analysis, manipulation and communication technology (Internet, Web sites, Geographic Information Systems, etc.) for preparing and disseminating high resolution hydrological and meteorological forecasts and products which best serve the changing needs of varied users.
Dan Smith, NOAA/NWS/Southern Region Scientific Services Division, 817-978-2671, or on the Internet at dan.smith@noaa.gov.
The NWS Central Region science priorities to be addressed by proposals are as follows:
Improve hazardous weather warnings for different geographical locations in Central Region, including the Central Plains, Northern Plains, Ozark Plateau, mid and upper Mississippi Valley, lower Ohio Valley and Great Lakes regions by:
Developing more accurate, region-specific conceptual models for tornado, hail, high wind, heavy precipitation, and elevated nocturnal convection events.
Developing more accurate, region-specific diagnostic strategies/methodologies to interrogate remotely sensed data (radar, satellite, etc.) and numerical weather guidance with emphasis on weaker and shorter lived severe thunderstorm and tornado events.
Improve Central Region winter weather precipitation forecasts by:
Developing a climatology of winter precipitation events including, but not limited to, heavy snow, sleet or freezing rain stratified by Central Region County Warning Forecast Areas and relating it to public products and services. Linking cloud physics and associated micro-physical processes, precipitation efficiency, water vapor distribution, and transport of winter stratiform and/or convective clouds to improved methodologies for estimating or forecasting winter precipitation amounts.
Improve the accuracy (probability of detection) and average forecast lead time for winter storm warnings by better understanding the development, intensification, and sudden acceleration northeastward of strong mid-west storm systems following Rocky Mountain lee-side cyclogenesis.
Improve aviation forecast products and services by:
Developing a climatology of ceiling, visibility, and low-level wind shear for Central Region county warning forecast areas.
Developing better methodologies to forecast the onset and dissipation of fog and low ceilings for different geographical locations in the Central Region.
Improve the utility and utilization of numerical guidance in the forecast process by developing more efficient and effective methodologies to display, review, and interrogate numerical model output in an operational environment.
Improve the quality of weather services to the public through the development of new and innovative forecast methodologies and products.
Peter Browning, NOAA/NWS/Central Region Scientific Services Division, 816-891-7734 ext. 300, or on the Internet at
The NWS Western Region science needs to be addressed by proposals are as follows:
Improve operational precipitation and hydrological forecasts in complex terrain across a wide range of western U.S. meteorological regimes. In the West, water is a critical and closely managed resource.
Improve wintertime forecasts of snow in complex terrain.
Improve acquisition and use of non-NWS observational networks, such as mesonets.
Improve analysis through better assimilation systems that produce more realistic analysis in complex terrain.
Improve numerical model performance in western complex terrain.
Research, develop and help implement statistical methods to objectively produce bias-corrected model grids (e.g. from grids, not just points) to improve gridded forecasts.
Research, develop and help implement methods to objectively downscale forecast and ensemble grids to the resolution necessary (2-5km) to help improve IFPS forecasts and forecast methodology.
Improve hydrological modeling, through use of emerging techniques, such as distributed hydrologic modeling, of rain/snow melt processes in complex terrain.
Develop conceptual models that better describe the effect of complex terrain on weather forecasts.
Improve precipitation and flash flooding forecasts produced from high based convection with a deep dry sub cloud layer in the arid inter-mountain region.
Improve forecast of significant precipitation events that produce flooding and affect marine forecasts along the west coast.
Improve forecast of the onset of the monsoon season and flash flooding in the desert Southwest.
Improve snow and wind forecast associated with arctic front intrusion into complex terrain in the northern plains.
Improve fire-weather forecasts and smoke dispersion in the western United States.
Improve forecasters ability to produce forecasts of temperature, humidity, and winds in complex terrain.
Improve forecast and warnings of severe weather unique to the western United States through the better use of observational systems and conceptual models.
Improve the performance of coastal and mountain-top WSR-88D radars on a variety of NWS Western Region weather regimes, such as high based inter-mountain convection and low topped storms along the west coast.
Andy Edman, NOAA/NWS/Western Region Scientific Services Division, 801-524-5131, or on the Internet at
The science priorities of the NWS Alaska Region to be addressed by proposals are as follows (in order of importance):
Determine the geomorphic influences on type, amount, duration, and intensity of snow associated with complex terrain to improve forecasts for the Anchorage, Alaska, area, where over 50 percent of the state population resides.
Develop better methodologies to forecast winds over the marine inland waters of southeast Alaska. Methodologies can include numerical forecasts from mesoscale models.
Improve methodologies to forecast fog in the Alaska coastal communities
Improve the winter season WSR-88D-based rain and snow QPEs. All six sites are influenced by complex topography.
Improve the accuracy (probability of detection) and lead time for airborne volcanic ash detection and tracking by better understanding source conditions and early developments of the ash cloud. Improvements must include remote sensing techniques.
Innovative approaches to remote sensing that result in the formulation and production of high resolution hydrometeorological forecasts of river and localized flash flooding produced by synoptic and mesoscale weather systems interacting with complex terrain in south-central Alaska. Emphasis should be placed on the Kenai River watershed.
Gary Hufford, NOAA/NWS/Alaska Region Environmental and Scientific Services Division, 907-271-3886, or on the Internet at
The science priorities of the NWS Pacific Region to be addressed in proposals are as follows:
Optimize the utility of new and existing observing systems, with emphasis on satellites and their use in providing precipitation estimations.
Develop, optimize, and utilize local high-resolution modeling capabilities aimed at providing operational real-time guidance as well as a tool for locally conducted research.
Conduct Pacific Basin synoptic climatological studies, with emphasis on flash-flood and high-wind events.
Ken Waters, NOAA/NWS/Pacific Region Regional Scientist, 808-532-6413, or on the Internet at
NCEP service centers have established the following science priorities which may be addressed in proposals:
Develop numerical and subjective techniques to improve the accuracy of convective forecasts in the 2-6 hour time scale.
Improve the treatment of drizzle-size droplets in clouds that lead to aircraft icing through improved parameterization and/or explicit micro physics techniques that are both economical and support cloud initialization using existing observational data sets, including the Automated Surface Observing System, radar, and satellite data.
Enhance understanding of the triggering mechanisms associated with different families of clear-air turbulence events, including gravity waves emanating from convective systems, gravity waves induced by jet streaks, cross-mountain flow, critical boundary-layer flow regimes, etc.
Improve the observations, data assimilation, and modeling of the moisture profile in the boundary layer to better forecast the occurrence of fog and low cloud ceilings.
Develop dynamically and ensemble-based techniques to improve the prediction of weekly, monthly, and seasonal precipitation skill, including regional climate prediction systems.
Improve global and domestic forecasts of seasonal climate variability through better understanding and modeling of the coupled atmosphere/ocean system and the effect of variations on that coupling to ensemble prediction.
Conduct research addressing the broad geographical and seasonal ranges of problems associated with QPF, from initiation, duration, movement, to precipitation type. This includes the spectrum from drizzle to heavy rain and from lake-effect snow to synoptic-scale snowfall.
Develop new model verification techniques to enhance current methods of objectively assessing which models will perform best. The techniques should apply for all time ranges used by HPC, from less than 6 hours to 7 days.
Develop techniques for using output from model ensembles in forecast operations to improve the accuracy of both deterministic and probabilistic forecasts and to add information concerning uncertainty.
Develop techniques to modify gridded numerical guidance to produce gridded forecast products, which are made horizontally, vertically, and temporally consistent using sound meteorological theory.
Develop a robust marine verification system that utilizes the various observations from both in-situ and remote sources. Parameters to be verified include, but are not limited to: Wind speed and direction; sea-state (height, period, direction); visibility; weather; and icing conditions.
Improve forecasting techniques for warnings and forecasts of hazardous marine conditions through the use of additional data sources (especially in-situ), as well as improved use of all marine data sources in numerical weather prediction and model data assimilation techniques.
Develop mesoscale or storm-scale numerical prediction models, ensemble approaches, and verification techniques to improve forecasts of the location, timing, intensity, and mode of deep moist convection.
Develop three-dimensional mesoscale analysis techniques, observing systems, expert systems or statistical guidance, robust conceptual models, and scientific understanding to improve forecasts of the location, timing, intensity, and mode of deep moist convection.
Improve hurricane intensity forecasting using either empirical or dynamical forecasting techniques, especially those that combine atmospheric/oceanic interactions and which can be incorporated with existing TPC intensity guidance.
Improve forecasts for the size of tropical cyclones. A goal of this effort will be the generation of probabilistic guidance by MPC and TPC on 34, 50 kt, and 64 kt forecast wind radii for marine and emergency management interests.
Develop an “all-platform” surface wind display and analysis over marine areas for use by TPC and MPC that would cover the larger scale tropical storm environment and that would combine QuikScat, SSM/I, ERS, low-level cloud-drift winds, and conventional observations, including buoys and ships, etc.
In all instances, projects are encouraged which not only address the priorities of individual NCEP service centers but also address aspects of the NCEP/Environmental Modeling Center's goals for improving data assimilation and numerical modeling of the atmosphere, oceans, and Earth's surface.
Ralph Petersen, NOAA/NWS/National Centers for Environmental Prediction, 301-763-8000 ext. 7200, or on the Internet at
All accredited U.S. colleges and universities, including federally funded educational institutions such as the Naval Postgraduate School, are eligible for funding under this announcement. The restriction is needed because the results of the collaboration are to be incorporated in academic processes which ensure academic
The evaluation criteria and weighting of the criteria are as follows:
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All proposals will be evaluated and individually ranked in accordance with the assigned weights of the above evaluation criteria by an independent peer panel review. Three to seven NWS experts representing NWS Regions and Centers may be used in this process. Their recommendations and evaluations will be considered, along with the program policy factors discussed below, by the selecting official who will select the proposals to be funded and determine the amount of funds available for each proposal. Unsatisfactory performance by a recipient under prior Federal awards may result in an application not being considered for funding. Because the selecting official will take into account program policy factors, awards may not necessarily be made to the highest scored proposals.
The selecting official may take into account the need to spread awards geographically and among priorities and universities. While a university may submit more than one application, the selecting official may limit the awards to only one per university. Finally, the amount of funds available and whether an application substantially duplicates other projects currently approved for funding or funded by NOAA or other Federal agencies may be considered by the selecting official.
Proposals must adhere to the five provisions under “Proposals” and the seven requirements under “Required Elements” by the deadline of February 21, 2003. Failure to follow these restrictions will result in proposals being returned to the submitter without review. In addition, applicants should note those provisions under “Other Requirements/Information” that must be complied with before an award can be made.
(1) Proposals submitted to the NOAA NWS CSTAR Program must include the original and two unbound copies of the proposal.
(2) Investigators are not required to submit more than three copies of the proposal. Investigators are encouraged to submit sufficient proposal copies for the full review process if they wish all reviewers to receive color, unusually sized (not 8.5 x 11), or otherwise unusual materials submitted as part of the proposal. Only an original version of the federally required forms and two copies are needed.
(3) Proposals should be no more than 30 pages (numbered) in length, including budget, investigators vitae, and all appendices and should be limited to funding requests for 1- to 3-year duration. Appended information should be counted within the 30-page total. Federally mandated forms are not included within the page count.
(4) Proposals should be sent to the NWS (see
(5) Facsimile transmissions and electronic mail submission of full proposals will not be accepted.
All proposals should include the following elements:
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(1) Applicants may obtain a standard NOAA application kit from the NOAA Office of Grants Management. Primary applicant Certification: All primary applicants must submit a completed Form CD-511, “Certification Regarding Debarment, Suspension, and Other Responsibility Matters; Drug-Free Workplace Requirements and Lobbying.”
(2) Federal Policies and Procedures Applicable to this announcement:
A.
B. The Department of Commerce Pre-Award Notification of Requirements for Grants and Cooperative Agreements contained in the
(3) There is no guarantee that sufficient funds will be available to make awards for all qualified projects. The exact amount of funds that may be awarded will be determined in pre-award negotiations between the applicant and the NOAA representatives. Publication of this notice does not oblige NOAA to award any specific project or to obligate any available funds. If one incurs costs prior to receiving an award agreement signed by an authorized NOAA official, one would do so solely at one's own risk of these costs not being included under the award.
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(5) If an application is selected for funding, the DOC has no obligation to provide any additional future funding in connection with the award. Renewal of an award to increase funding or extend the period of performance is at the total discretion of the DOC.
In accordance with Federal statutes and regulations, no person on grounds of race, color, age, sex, national origin, or disability shall be excluded from participation in, denied benefits of, or subjected to discrimination under any program or activity receiving financial assistance from the NOAA/NWS. The NOAA/NWS does not have a direct telephonic device for the deaf (TDD capabilities can be reached through the State of Maryland-supplied TDD contact number, 800-735-2258, between the hours of 8 a.m.-4:30 p.m.
This notice contains collection-of-information requirements subject to the Paperwork Reduction Act. The use of Standard Forms 424 and 424A has been approved by OMB under the respective control numbers 0348-0043 and 0348-0044. Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid Office of Management and Budget control number.
This notice has been determined to be not significant for purposes of E.O. 12866. Applications under this program are not subject to E.O. 12372, “Intergovernmental Review of Federal Programs.”
Notice and comment are not required under 5 U.S.C. 553(a)(2), or any other law, for rules relating to public property, loans, grants, benefits or contracts. Because notice and comment are not required, a Regulatory Flexibility Analysis, 5 U.S.C. 601
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Mid-Atlantic Fishery Management Council (Council) and its Ecosystems Committee, Squid, Mackerel and Butterfish Committee, Law Enforcement Committee, Highly Migratory Species Ad-Hoc Committee, and Executive Committee will hold a public meeting.
Tuesday, January 21, 2003, through Thursday, January 23, 2003. On Tuesday, January 21, 2003, the Ecosystems Committee will meet from noon until 2 p.m. The Squid, Mackerel and Butterfish Committee will meet from 2-5 p.m. On Wednesday, January 22, 2003, the Law Enforcement Committee will meet from 8:30-9:30 a.m. Council will meet from 9:30 a.m. until 4:00 p.m. On Thursday, January 23, 2003, the Highly Migratory Species Ad-Hoc Committee will meet from 8-9 a.m. The Executive Committee will meet from 9-10 a.m. Council convenes from 10 a.m. until 4 p.m.
This meeting will be held at the Trump Plaza Hotel, Mississippi Avenue and the Boardwalk, Atlantic City, NJ, telephone 609-441-2708.
Daniel T. Furlong, Executive Director, Mid-Atlantic Fishery Management Council; telephone: 302-674-2331, ext. 19.
Agenda items for the Council's committees and the Council itself are: the Ecosystems Committee will discuss Council's role in identifying and addressing NMFS habitat/bycatch requirements; the Squid, Mackerel and Butterfish Committee will discuss and finalize measures to be included in Amendment 9 (gear impacts on EFH, Illex fishery moratorium, multiple year specification process, bycatch/discard reduction in Loligo fishery, and “other”); the Law Enforcement Committee will review the Fisheries Achievement Award Program and discuss background investigation needs/limitations regarding Council members and advisors; Council will conduct a scoping meeting for Amendment 1 to the Dogfish Fishery Management Plan (consider, among other management measures, the following items for inclusion in Amendment 1: define a rebuilding biomass target for Bmsy, establish rebuilding timeframe consistent with Section 304(e) of the Magnuson-Stevens Act, address bycatch/discard issues, address different allocation processes,
Although non-emergency issues not contained in this agenda may come before the Council for discussion, these issues may not be the subject of formal Council action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final actions to address such emergencies.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Joanna Davis at least 5 days prior to the meeting date.
National Oceanic and Atmospheric Administration (NOAA).
Notice of availability and request for public comment.
The United States Climate Change Science Program (CCSP) is announcing the availability of a draft document “Strategic Plan for the Climate Change Science Program.” The complete draft strategic plan was posted on the CCSP web site at
In your review, we ask you to provide a perspective on the content, implications, and challenges outlined in the plan as well as suggestions for any alternate approach you wish to have considered, and the types of climate and global change information required by policy makers and resource managers. We also ask that you comment on any inconsistencies within or across chapters, and omissions of important topics. For any shortcomings that you note in the draft, please propose specific remedies.
In your comments, please consider the following issues: (1) Overview on the content, implications, and challenges outlined in the plan; (2) areas of agreement and disagreement, as appropriate; (3) suggestions for alternative approaches, if appropriate; (4) inconsistencies within or across chapters; (5) omissions of important topics; (6) specific remedies for identified shortcomings of the draft plan; (7) type of climate and global change information required by representative groups; (8) other comments not covered above. Please do not comment on grammar, spelling, or punctuation. Professional copy editing will correct deficiencies in these areas for the final draft.
Please follow these instructions for preparing and submitting your review. Using the format guidance described below will facilitate our processing of reviewer comments and assure that your comments are appropriately considered. Please provide background information about yourself on the first page of your comments: your name(s), organization(s), area(s) of expertise, mailing address(es), telephone and fax numbers, and email address(es). Overview comments on the chapter should follow your background information and should be numbered. Comments that are specific to particular pages, paragraphs or lines of the chapter should follow your overview comments and should identify the page and line numbers to which they apply. Comments that refer to a table or figure should identify the table or figure number. In the case of tables, please also identify the row and column to which the comment refers. Order your comments sequentially by page and line number. At the end of each comment, please insert your name and affiliation. An example of the format is provided on the CCSP web site at:
Comments on this draft document should be submitted by January 18, 2003. Comments received after that date will be considered to the extent practicable. All comments submitted will be posted on the CCSP web site for public review.
The Strategic Plan for the Climate Change Science Program is available on the CCSP web site at:
All comments should be sent electronically to
Ms. Sandy MacCracken, U.S. Climate Change Science Program, Suite 250, 1717 Pennsylvania Ave., NW., Washington, DC 20006. (Phone: 202-223-6262, Fax: 202-223-3065, e-mail:
Scientists recognized the existence of a natural “greenhouse effect” and the possibility of human-induced changes in the Earth's climate and environment as early as the 19th century and, over time, this possibility has become widely accepted. In the last decades of the 20th century, public debate about the contribution of human activities to observed climate change and potential future changes in climate, and about courses of action to manage risks to humans and the environment, has been active and frequently contentious. These debates cover a range of both science and policy issues, including the extent to which global temperatures have in fact changes; whether most of the observed overall change in temperature of the last 50 years is attributable to human activities (principally the burning of biomass and fossil fuels and changes in land cover); how much climate might change in the future; and
Science-based information is required to inform public debate on the wide range of climate and global change issues necessary for effective public policy and stewardship of natural resources. Developing the needed information will require addressing a wide-ranging set of fundamental science questions, significantly improving observations and data management, and implementing highly credible and transparent mechanism for conveying research results in ways that are useful for decisionmakers and the public.
Environmental systems on Earth are changing constantly. The climate system is highly variable, with conditions varying significantly over the span of seasons, years, decades, and longer timescales. Fluctuations in the amount of energy emitted by the Sun, slight deviations in the Earth's orbit, volcanic injections of gases and particles into the atmosphere, and natural variations in ocean temperatures and currents, all cause variability and changes in climate conditions.
Against the backdrop of these natural forces, humans have become agents of environmental change, at least on timescales of decades to centuries, even as living standards for billions of people have improved tremendously. Emission of greenhouse gases and pollutants and extensive changes in the land surface (both tied to widespread development of modern living standards) have potential consequences for global and regional climate. They also influence air quality, the Earth's protective shield of stratospheric ozone, the distribution and abundance of water resources and many plant and animal species, and the ability of ecosystems to provide life-supporting goods and services.
The challenge is that discerning whether human activities are causing observed climatic changes and impacts requires detecting a small, decade-by-decade trend against the backdrop of wide temperature changes that occur on shorter timescales (seasons to years). A sound base of observations, as well as a solid understanding of how the Earth's environmental systems respond to different natural and human forces, is essential to detecting and attributing climate change to any specific cause. Currently, measurements taken at the Earth's surface, in various layers of the atmosphere, in boreholes, in the oceans, and in other environmental systems such as the cryosphere (frozen regions) indicate that the climate is warming. Further, in Climate Change Science: An Analysis of Some Key Questions (NRC, 2001a), the National Research Council (NRC), the operational arm of the National Academy of Sciences (NAS), concluded that “the changes observed over the last several decades are likely mostly due to human activities, but we cannot rule out that some significant part of these changes is also a reflection of natural variability.” The NRC report elaborates on this point:
Because of the large and still uncertain level of natural variability inherent in the climate record and the uncertainties in the time histories of the various forcing agents (and particularly aerosols), a causal linkage between the buildup of greenhouse gases in the atmosphere and the observed climate changes during the 20th century cannot be unequivocally established. The fact that the magnitude of the observed warming is large in comparison to natural variability as simulated in climate models is suggestive of such a linkage, but it does not constitute proof of one because the model simulations could be deficient in natural variability on the decadal to century time scale. The warming that has been estimated to have occurred in response to the buildup of greenhouse gases in the atmosphere is somewhat greater than the observed warming. At least some of this excess warming has been offset by the cooling effect of sulfate aerosols, and in any case one should not necessarily expect an exact correspondence because of the presence of natural variability.
Apparently contradicting the evidence of warming are inconsistencies in the observational record, particularly related to the differences between temperature trends measured at the surface and measurements taken from satellite observations of the lower- to mid-troposphere, which show no significant warming trends in the last two decades of the 20th century. Reconciling these differences and improving observational capabilities remains an important challenge with significant potential implications for decisionmaking.
But the issues extend beyond those of “detection and attribution” to projecting how climate and other related environmental conditions could change in the future. Confidence in such projections is tied to knowledge of basic climate processes and natural variability, the ability of climate models to represent accurately these processes, and the ability of models to represent interactions of natural processes and any human-induced changes in the climate system.
Improving the capability to project future climate conditions would be of significant economic and social value. Consider, for example, the benefits of improved forecasts of the onset of the El Niño-Southern Oscillation (ENSO). ENSO is a large-scale climate oscillation in the equatorial Pacific Ocean that changes phase every few years. Its effects reverberate through the global climate system to affect precipitation and temperature in many regions of the world. Armed with a basic understanding of the processes involved, scientists intensified systematic observations and improved their models, and by the late 1990s could successfully forecast some conditions months in advance. While much additional work is required to improve ENSO forecasts, some climatic features can now be accurately predicted, with significant societal benefits. In the United States, decisionmakers are able to better estimate energy requirements, prepare for storms, manage water resources, anticipate where damage recovery efforts will be required, and foresee other potential impacts. In countries in South America, Africa, and other regions of the world, resource planners and managers are applying model results to develop agricultural plans, anticipate potential food surpluses and shortages, and prepare for other impacts. Such as planning has already reduced suffering and saved crops that would have otherwise been lost to drought and other ENSO effects.
Improving the ability to project long-term trends in climate and related conditions is important to understanding the effects of different types and amounts of natural and human forcing, such as that due to different levels of greenhouse gas and aerosol emissions. Therefore, anticipating how possible future forcing could affect the climate requires development of complex computer models that incorporate the many features of the climate system and their interactions. Such models have been under construction for decades, and require ongoing observations and research into basic processes to fuel their continued improvement. Already, large-scale features of climate can be simulated, but many significant uncertainties remain to be addressed. Current models project significantly different increases in the global average surface temperature, from approximately 1 °C during the 21st century to more than 5 °C during the
Even if the scientific community were to develop a “perfect” model of the global climate, it would not be possible to predict the level and rate of future changes in climate resulting from human activities. This is because these activities are not predetermined, but rather depend on human choices, which will, in turn, affect future climate conditions. The activities in question-energy-related emissions of greenhouse gases; changing the surface of the land through clearing, conversion, and growth of different land covers; and the release of chemicals (both natural and human-made) that alter the productivity of the land and the oceans—all depend on a more basic set of human driving forces. These include population growth, living standards, characteristics of technology, and institutions (
Improving our ability to project potential future variations and changes in climate and environmental conditions, subject to assumptions about natural and human forcing, could enable governments, businesses, and communities to reduce damages and seize opportunities to benefit from changing conditions by adapting infrastructure, activities, and plans. But realizing this potential will require sustained research and improved understanding of the interactions among climate, natural and managed environmental systems, and human activities. Scientific research needs to address a range of issues.
The complexity of the Earth's environmental systems, the unique conditions that they provide for life, and the state of these systems, including potential impacts on society, make climate and global change among the most important issues for our generation, and perhaps for generations to come. Given what is at stake, the Nation and the international community need the best possible science to inform public debate and decisionmaking in government and the private sector.
In February 2002, President George W. Bush announced the formation of a new management structure, the Climate Change Science Program (CCSP), to coordinate and provide direction to US research efforts in the areas of climate and global change. These efforts include the US Global Change Research Program (USGCRP), which began as a Presidential initiative in 1989 and was codified by Congress in the Global Change Research Act of 1990 (Pub. L. 101-606), and the Climate Change Research Initiative (CCRI), which was announced by the President in June 2001 to reduce significant uncertainties in climate science, improve global climate observing systems, and develop resources to support policy- and decisionmaking. Departments and agencies of the US Government that participate in the CCSP include the Departments of Agriculture, Commerce (the National Oceanic and Atmospheric Administration and the National Institute of Science and Technology), Defense, Energy, Health and Human Services, Interior (US Geological Survey), State, and Transportation; the Agency for International Development, the Environmental Protection Agency; the National Aeronautics and Space Administration; the National Science Foundation; and the Smithsonian Institution. The Office of Science and Technology Policy, the Council on Environmental Quality, and the Office of Management and Budget provide oversight on behalf of the Executive Office of the President.
The CCRI provides a distinct focus to the overall research program. The focus is defined by a set of uncertainties about the global climate system that have been identified by policymakers and analyzed by the NRC (NRC, 2001a). Areas addressed in the NRC report include climate observations, aerosols, North American carbon sources and sinks, climate feedbacks and modeling, scenarios of human-induced forcing, and development of methodologies for risk management. The CCRI is described more completely in Part I of this draft strategic plan.
The CCRI accelerates key areas of research that have been under development over the past thirteen years in the USGCRP. Over this period, the United States has made a large scientific investment—totaling more than $20 billion in the areas of climate change and global change research. With these resources, research programs supported by the agencies that participate in the USGCRP, in collaboration with several other national and international science programs, have mounted extensive space-based, surface, and in situ (at fixed sites) systems for global observations and monitoring of climate and ecosystems variables; have documented and characterized several important aspects of the sources, sinks, abundances, and lifetimes of greenhouse gases; have begun to address the complex issues surrounding various aerosol species that may significantly influence climate; have advanced our understanding of global water and carbon cycles (but with major remaining uncertainties); and have developed several approaches to computer modeling of global climate. The program has been a comprehensive, interagency collaboration that has facilitated scientific discovery. Program results have revealed and addressed many of the complex interactions of climate and other environmental systems, and have started to lay the foundation for understanding the relationships between natural variability and human activities that may contribute to change. US researchers have developed fundamental insights into how the climate and Earth system functions: Insights that are incorporated into advanced models throughout the world. The USGCRP is described more completely in Part II of this draft strategic plan.
CCSP's management will balance the CCRI's near-term focus on climate change with the USGCRP's breadth, creating a program that both accelerates development of answers to scientific
By investigating a targeted yet comprehensive set of questions, the CCSP seeks to focus attention on key climate changes issues that are important for public debate and decisionmaking, while maintaining sufficient breadth to facilitate the discovery of the unexpected. Establishing a careful balance between focus and breadth is essential if scientists are to develop knowledge of the interactions between natural variability and potential human impacts on the Earth system. This is an important management issue for the program and is a prerequisite for making as effective and productive use as possible of the significant resources allocated to this purpose. Establishing this balance, and a rational sequencing of research priorities and potentials, will require input from both decisionmaking and the science community.
To fulfill its mission as the publicly sponsored research program addressing climate change issues for the United States, the CCSP must continuously adhere to three guiding principles that underpin the objectivity, integrity, and usefulness of its research and reporting:
(i) The scientific analyses conducted by the CCSP are policy relevant but not policy driven. CCSP scientific analyses (including measurements, models, projections, and interpretations) are directed toward continually improving our understanding of climate, ecosystems, land use, technological changes, and their interactions. In developing projections of possible future conditions, the CCSP addresses questions in the form of “If * * *, then * * *” analyses. Policy and resource management decisions are the responsibility of government officials who must integrate many other considerations with available scientific information.
(ii) CCSP analyses should specifically evaluate and report uncertainty. All of science, and all decisionmaking, involves uncertainty. Uncertainty need not be a basis for inaction; however, scientific uncertainty should be carefully described in CCSP reports as an aid to the public and decisionmakers.
(iii) CCSP analyses, measurements, projections and interpretations should meet two goals: Scientific credibility and lucid public communication. Scientific communications by the CCSP must maintain a high standard of methods, reporting, uncertainty analysis, and peer review. CCSP public reports must be carefully developed to provide objective and useful summaries of findings.
This draft strategic plan for the CCSP, incorporating both the USGCRP and the CCRI, is built around a carefully constructed set of questions and objectives for each of the major areas of the program. Primary research questions that focus on broad science issues are supported by more detailed questions and objectives that can be addressed in specific research initiatives and projects. For each major question addressed, the strategy includes a very brief description of the state of knowledge, subsidiary questions, descriptions of products and deliverables, information of activities and infrastructure needed to make progress, and the benefits or “payoffs” from research. For each major program area, linkages to important national and international research activities are also described.
This plan should be considered a draft subject to substantial revision through public comment and independent review by the NAS.
Part I of the plan describes the components of the CCRI as discussed above. These are organized into three broad programmatic areas: (1) Research focused on key climate change uncertainties; (2) Climate quality observations, monitoring, and data management; and (3) Resources for decision support.
Part II of the plan describes major research questions about how the components of Earth's environmental system function, how the system may change in response to human and natural forcing, and what the implications of these changes may be for a variety of human activities and natural environments and resources. For each major research question, a state of knowledge, illustrative research questions, research needs, and a list of products and payoffs are described. The specific topics addressed and their corresponding major research questions are:
In addition, the final chapter in Part II is devoted to Grand challenges in modeling, observations, and information systems. Modeling, observations, and data and information dissemination are crosscutting, “enabling” activities and are tightly coupled to the seven research elements. These are needs that are particular to a given research area and must be planned and implemented in close association with the research that they support or draw on. However, they also need to be managed in a focused manner because they provide essential infrastructure that must serve multiple purposes within the CCSP-enabling fundamental research, as well as supporting assessment and decisionmaking—and because they depend on the distributed assets of CCSP agencies, some of which were originally developed to serve other needs.
Part III of the plan describes communication, cooperation, and management issues that cut across all areas of the program. The specific topics addressed are:
NRC, 1999a. Committee on Global Change Research, National Research Council, Global
NRC, 2001a. National Research Council, Committee on the Science of Climate Change, Climate Change Science: An Analysis of Some Key Questions (Washington, DC: National Academy Press).
Department of Defense, Defense Security Service.
Notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by February 20, 2003.
Written comments and recommendations on the proposed information collection should be sent to the Defense Security Service.
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the above address, or call the Defense Security Service at (703) 325-6182.
See “Needs and Uses”.
Department of Defense, Defense Security Service.
Notice.
In compliance with Section 350(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Assistant Secretary of Defense (C3I) announces the proposed reinstatement of a public information collection and seeks public comment on the provisions thereof, Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.
Consideration will be given to all comments received by February 20, 2003.
Written comments and recommendations on the proposed information collection should be sent to the Defense Security Service.
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the above address, or call the Defense Security Service at (703) 325-6182.
The DD Form 1879, “Department of Defense Request for Personnel Security Investigation,” is used to request Single Scope Background Investigations (SSBIs), National Agency Checks with Local Agency Checks and Credit Checks (NACLCs), National Agency Checks (NACs), SSBI Periodic Reinvestigations (PRs), or Special Investigative Inquiries (SIIs). It will accompany the Standard Form 85-P, “Questionnaire for Public Trust Position,” or Standard Form 86, “Questionnaire for National security Position,” which will be used by the Defense Security Service for the purpose of conducting SSBIs, NACLCs, NACs, PRs, and SIIs. These provide the basis for determination of a person's eligibility for access to classified information, appointment to a sensitive position, assignment to duties that require a automated collection of techniques or personnel security or trustworthiness determination continuing eligibility for retention of a security clearance, or assignment to other sensitive duties.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by February 6, 2003.
Written comments and recommendations on the proposed information collection should be sent to Ms. Thomas at the Office of Management and Budget, Desk Officer for DoD Health Affairs, Room 10235, New Executive Office Building, Washington, DC 20503.
Written requests for copies of the information collection proposal should be sent to Mr. Cushing, WHS/DIOR, 1215 Jefferson Davis Highway, Suite 1204, Arlington, VA 22202-4302.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by February 6, 2003.
Written comments and recommendations on the proposed information collection should be sent to Ms. Zeiher at the Office of Management and Budget, Desk Officer for DoD Health Affairs, Room 10235, New Executive Office Building, Washington, DC 20503.
Written requests for copies for the information collection proposal should be sent to Mr. Cushing, WHS/DIOR, 1215 Jefferson Davis Highway, Suite 1204, Arlington, VA 22202-4302.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by February 6, 2003.
Written comments and recommendations on the proposed information collection should be sent to Ms. Zeiher at the Office of Management and Budget, Desk Officer for DoD Health Affairs, Room 10235, New Executive Officer Building, Washington, DC 20503.
Written requests for copies of the information collection proposal should be sent to Mr. Cushing, WHS/DIOR,
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by February 6, 2003.
Written comments and recommendations on the proposed information collection should be sent to Ms. Zeiher at the Office of Management and Budget, Desk Officer for DoD Health Affairs, Room 10235, New Executive Office Building, Washington, DC 20503.
Written requests for copies of the information collection proposal should be sent to Mr. Cushing, WHS/DIOR, 1215 Jefferson Davis Highway, Suite 1204, Arlington, VA 22202-4302.
Department of Energy.
Agency Information Collection Extension.
The Department of Energy (Department or DOE) has submitted an information collection package to the Office of Management and Budget (OMB) for extension under the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). The package covers the collection of information from state and alternative fuel provider fleets that are subject to the DOE's Alternative Fuel Transportation Program (10 CFR Part 490). The regulations contained in DOE's Alternative Fuel Transportation Program have been promulgated in accordance with sections 501 and 507(o) of the Energy Policy Act of 1992, Pubic Law 102-486, 106 STAT. 2776; 42 U.S.C. 13251, 13257(o). This information is used by the Department to determine the compliance statuses of covered fleets regulated under the Alternative Fuel Transportation Program. The information is critical to ensure the Government has sufficient information to ensure compliance of fleets with reporting and alternative fuel vehicle acquisition requirements.
Comments must be filed on or before February 6, 2003. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the OMB Desk Officer of your intention to do so as soon as possible. The Desk Officer may be telephoned at (202) 395-3087. (Also, please notify the DOE contact listed in this notice.)
Address comments to DOE Desk Officer, Office of Management and Budget, Office of Information and Regulatory Affairs (OIRA), Room 10102, New Executive Office Building, 725 17th Street, NW, Washington, DC 20503. (Comments should also be addressed to the Records Management Division, Office of the Chief Information Officer, at the address listed below.)
Requests for additional information should be directed to Susan L. Frey, Director, Records Management Division, Office of Records and Business Management, IM-11/GTN Bldg. , U.S. Department of Energy, 1000 Independence Ave SW., Washington, DC 20585-1290.
The package contains the following information:
(1)
(2)
(3)
(4)
(5)
(6)
(7) Estimated total burden hours, including recordkeeping hours, required to provide the information is 5 hours.
Department of Energy.
Agency information collection extensions.
The Department of Energy (DOE) is submitting an information collection package to the Office of Management and Budget (OMB) for renewal under the Paperwork Reduction Act of 1995. The package requests a 3-year extension of its Security information collection (formerly known as Safeguards and Security), OMB Control Number 1910-1800. The package covers collections of information concerning the management and administration of DOE's Government-owned/contractor-operated facilities (GOCO's), offsite contractors, businesses and citizens. The information is used by Departmental management to exercise management oversight as to the implementation of applicable statutory and contractual requirements and obligations. The collection of this information is critical to ensure that the Government has sufficient information to judge the degree to which contractors meet contractual requirements; that public funds are being spent in the manner intended; and that fraud, waste, and abuse are immediately detected and eliminated. These collections provide information concerning the Department's security program. Typical information collected in this package pertains to material control and accountability, security incident investigations, and protection of unclassified and classified documents.
Comments regarding this information collection package should be submitted to the OMB Desk no later than February 6, 2003. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the OMB Desk Officer of your intention to do so as soon as possible. The Desk Officer may be telephoned at (202) 395-3087. (Also, please notify the DOE contact listed in this notice.)
Submit comments to DOE Desk Officer, Office Information and Regulatory Affairs (OIRA), Office of Management and Budget, Docket Library, Room 10102, 725 17th Street, NW., Washington, DC 20503.
Susan L. Frey, Director, Records Management Division, Office of Records and Business Management, Office of the Chief Information Officer, IM-11/GTN Bldg, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585-1290, (301) 903-3666, or E-mail
The package contains: (1)
Department of Energy.
Agency information collection extension.
The Department of Energy (DOE) has submitted renewals for an additional three years for the information collection(s) listed at the end of this notice to the Office of Management and Budget (OMB) for review under sections 3507(h)(1) and 3506(c) of the paperwork Reduction Act of 1995 (Pub. L. 104-13).
Each entry contains the following information: (1) The collection number and title; (2) A summary of the collection of information, type of request (new, revision, extension, or reinstatement), response obligation (mandatory, voluntary, or required to obtain or retain benefits); (3) a description of the need and proposed use of the information, (4) a description of the likely respondents; and (5) an estimate of the total annual reporting burden (
Comments must be filed on or before February 6, 2003. If you anticipate that you will be submitting comments but find it difficult to do so within the time allowed by this notice, you should advise the OMB DOE Desk Officer listed below of your intention to do so as soon as possible. The OMB Desk Officer may be telephoned at (202) 395-7318. (Also, please notify the DOE contact listed below.)
Address comments to the DOE Desk Officer, Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget, Room 10102 725 17th Street, NW., Washington, DC 20503. (Comments should also be addressed to the Records Management Division, Office of the Chief Information Officer, at the addressee below.)
The information collections submitted to OMB for review were:
(1)
Energy Information Administration (EIA), Department of Energy (DOE).
Policy statement.
The EIA has established a policy regarding the use of disclosure limitation methods for statistical tables derived from historical electric power survey information collected under a pledge of confidentiality. Disclosure limitation methods are used to ensure that sensitive table cell values are suppressed;
Under this policy, EIA will use disclosure limitation methods on statistical tables based on aggregated historical electric power survey information collected under a pledge of confidentiality only if the information is currently collected under a pledge of confidentiality. (As of December 2002, electric power information collected under a pledge of confidentiality includes costs of fuels for unregulated plants, tested heat rates, fuel inventories, plant costs and expenses for unregulated plants, monthly electricity sales information reported for energy-only service, and latitude/longitude for electric power facilities.) For information not currently collected under a pledge of confidentiality, EIA will not use disclosure limitation methods for statistical tables derived from the historical electric power survey information previously collected under a pledge of confidentiality.
This policy applies to any information collected in an EIA electric power survey under a pledge of confidentiality during a survey period at least three years prior to the date of its proposed release in a statistical table. The three-year period includes the reporting year (the year for which information is currently being collected) and two prior years where information has been finalized. In accordance with applicable laws and regulations, EIA will continue to not publicly release survey forms collected under a pledge of confidentiality.
This policy is based on the need to provide additional statistical tabulations that will improve and broaden the understanding of the United States electric power industry by releasing additional statistical tabulations. These tables may present information at the national, State, and/or regional levels in various EIA information products. (EIA's electric power information is available on the web at
This policy becomes effective on January 7, 2003.
Requests for additional information or questions about this policy should be directed to Dean Fennell. He may be contacted by FAX (202-287-1934), e-mail
Requests should be directed to Mr. Fennell at the address listed above. EIA's electric power information is available on the web at
The Federal Energy Administration Act of 1974 (Pub. L. 93-275, 15 U.S.C. 761
The EIA conducts surveys to collect information about the electric power industry from companies and organizations involved in the generation, transmission, distribution, and sales of electric power. This survey information is disseminated in a variety of information products and electronic data files used by government and private sector policymakers and analysts.
On October 24, 2002, EIA issued a
The proposed policy was based on the need to provide additional statistical tabulations that will improve and broaden the understanding of the electric power industry. These statistical tables will provide electric power information at national, State, and/or regional levels. (An example of this is publishing national level fuel consumption information in EIA's Annual Energy Review, or publishing State or regional level information for fuel consumption, useful thermal output, or generation in reports such as EIA's Electric Power Monthly or Natural Gas Annual.)
In response to the
Of the comments received, nine were in favor of a policy of not using disclosure limitation methods on statistical tables based on historical electric power survey information, nine objected to the proposal, and one commenter did not take a position. After analyzing the comments, EIA decided to propose using disclosure limitation methods on statistical tables based on historical electric power survey information collected under a pledge of confidentiality only if the survey information is currently collected under a pledge of confidentiality. If the historical survey information was collected under a pledge of confidentiality but is not currently collected under such a pledge, EIA will not use disclosure limitation methods on statistical tables based on the aggregated historical information.
The decision is based on the fact that for information not currently collected under a pledge of confidentiality, the public has access to the most recent information in individually-identifiable form. Therefore, the release of statistical tables not subjected to disclosure limitation methods for historical survey information previously collected under a pledge of confidentiality should not cause substantial competitive harm to the position of any survey respondent. Examples of information meeting this criteria include generation and fuel consumption information collected under a pledge of confidentiality prior to 1999 on the Form EIA-867, but the generation and fuel consumption information are currently collected with no pledge of confidentiality.
Following is a summary of the major supporting and opposing arguments received in response to EIA's proposed policy.
Nine responders to the October 24, 2002,
Other persons argued that the industry has failed to document any specific harm that will arise from the release of EIA aggregated survey information despite the fact that competition has existed in the industry for several years. They also stated that much of the information is already available, that the statistical tables will not have any competitive impact by the time they are released by EIA, and that public policy goals depend on this information.
Some supporters of the release of aggregated information after three years believe that both EIA's enabling statute and the Freedom of Information Act (FOIA) mandate that EIA disseminates its information. They state that the FOIA contains nine exemptions from public disclosure, and only Exemption 4 (which protects against release of confidential commercial or financial information), potentially relates to the type of information collected on EIA's electric power surveys. In fact, one commenter stated that the purpose of FOIA is to promote disclosure, not to justify secrecy.
Another commenter in favor of the release of historical information stated that with the movement toward a more competitive market, it should be clear to all that energy markets can function best in the presence of wide access to information.
Also in support of the proposed policy, many commenters to previous EIA
Nine responders to the October 24, 2002,
Some had an issue with the three-year time period. Their concern is that much of the information provided in the responses to the EIA surveys would potentially change little over time. Thus, if the number of entities included in a particular aggregate is small, individually reported information could be discerned. If the information changes little over time, competitive harm could occur with respect to fuel purchase prices and plant operating costs.
One commenter opposed the proposal to release aggregate information collected under a pledge of confidentiality after three years stating that the proposal is too broad and unfounded. The person also stated that the new proposal violates the expectations of companies that have submitted the information in reliance on confidentiality assurances. The person went on to say that the mere passage of time does not ensure that information treated as confidential because of commercial and security concerns no longer need to be treated as confidential. The commenter believes that the proposal is a generalization, which can not be made for all categories of information or for all facilities and companies. Also, companies have provided the information in reliance on EIA assurances, which should not now be withdrawn after the information has been submitted.
EIA finds that the comments on the issue are thoughtful and reflect the nature of the tradeoff in ensuring information is available for monitoring and analyzing the electric power industry and markets while at the same time ensuring that information collected under a pledge of confidentiality in EIA's electric power surveys is not released in statistical tables in such a way as to cause potential substantial competitive harm to the survey respondents.
EIA's final policy is to discontinue the use of disclosure limitation methods such as suppression and complimentary suppression for statistical tables derived from historical electric power survey information collected under a pledge of confidentiality only if the information is not currently collected under a pledge of confidentiality. This decision is based on the need to provide additional tabulations that will improve and broaden the understanding of the electric power industry by releasing more aggregated information (State, regional, or national level) while using disclosure limitation methods to ensure the confidentiality of information currently collected under a pledge of confidentiality. The potential disclosure of data that were confidential and older than three years will not have a major impact on the competitiveness of the respondents, as their current data are no longer confidential.
The EIA is establishing a policy regarding the use of disclosure limitation methods for information in statistical tables derived from historical electric power survey information collected under a pledge of confidentiality. (Disclosure limitation methods are used to ensure that sensitive table cell values are suppressed;
This policy would apply to any information collected in an EIA electric power survey under a pledge of confidentiality during a survey period at least three years prior to the date of its proposed release in a statistical table. The three-year period includes the reporting year (the year for which information is currently being collected) and two prior years where information have been finalized. In accordance with applicable laws and regulations, EIA will not publicly release survey forms collected under a pledge of confidentiality.
Section 52 of the Federal Energy Administration Act (Pub. L. No. 93-275, 15 U.S.C. 790a).
Take notice that on December 24, 2002, ANR Pipeline Company (ANR) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the following tariff sheets, with an effective date of December 24, 2002:
ANR states that the revised tariff sheets are being filed in compliance with the Commission's November 26, 2002 Order in the above-referenced docket in regards to MDQ reductions. ANR Pipeline Company, 101 FERC 61,246 (2002).
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on December 23, 2002, ANR Pipeline Company (ANR) tendered for filing and approval Amendments to two Service Agreements between ANR and Wisconsin Public Service Corporation, which revise the MDQ under such Agreements. ANR requests that the Commission accept and approve the agreements to be effective January 1, 2003.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on December 27, 2002, CenterPoint Energy Gas Transmission Company (CEGT, formerly Reliant Energy Gas Transmission Company) tendered for filing as part of its FERC Gas Tariff, Fifth Revised Volume No. 1, First Revised Sheet No. 651, to be effective January 1, 2003.
CEGT states that the purpose of this filing is to describe the provisions of a revised negotiated rate transaction between CEGT and TPS Dell, L.L.C. Tariff sheets describing the original negotiated rate transaction (i.e., the transaction being amended by CEGT's filing) were accepted by the Commission in a letter order dated September 27, 2002, in Docket No. RP96-200-085.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on December 27, 2002, Citizens Communications Company (Citizens) filed an Agreement with Vermont Electric Cooperative, Inc. (VEC) for Firm Sales Service, designated as Citizens' Rate Schedule FERC No. 44. Citizens requests waiver of the Commission's prior notice requirements, and an effective date of January 1, 2003 for the service agreement.
Citizens states that copies of this filing were served on VEC and the Vermont Public Service Board. In addition, a copy of the rate schedule is available for inspection at the offices of Citizens' Vermont Electric Division during regular business hours.
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
Take notice that on December 23, 2002, Colorado Interstate Gas Company (CIG) tendered for filing its refund report in Docket No. RP01-350-000.
CIG states that the filing and refunds were made to comply with the Commission's order issued on August 5, 2002. CIG states that the refunds were made on November 25, 2002.
CIG states that the refund report summarizes jurisdictional transportation and gathering refund amounts for the period October 1, 2001 through September 30, 2002 pursuant to Article 2.2 of CIG's Stipulation and Agreement as approved in the Commission's August 5, 2002 order.
CIG states that copies of CIG's filing are being mailed to all parties of record in this proceeding and interested states regulatory Commissions.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed on or before January 7, 2003. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on December 23, 2002, Colorado Interstate Gas Company (CIG) tendered for filing to its FERC Gas Tariff, First Revised Volume No. 1, Fourth Revised Sheet No. 271, to become effective February 1, 2003.
CIG states that the tariff sheet is being filed to remove the five-year term matching cap from the right-of-first-
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on December 27, 2002, Colorado Interstate Gas Company (CIG) tendered for filing as part of its FERC Gas Tariff, First Revised Volume No. 1, the following tariff sheets, with an effective date of December 1, 2002:
CIG states that these tariff sheets are being filed to comply with the Commission's order issued November 27, 2002 in this proceeding and to remove the Maximum Daily Quantity reduction provision applicable to these negotiated rate transactions.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on December 26, 2002, Discovery Gas Transmission LLC (Discovery) tendered for filing tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, the following revised tariff sheets, to be effective February 1, 2003:
Discovery states that this filing is made in part for administrative purposes and in part as a housekeeping matter to clarify, update and clean up several items in Discovery's tariff.
Discovery further states that copies of the filing have been mailed to each of its customers, interested State Commissions and other interested persons.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
The Federal Energy Regulatory Commission (Commission) is reviewing the application for a new license for the El Dorado Project (FERC No. 184), filed on February 22, 2000. The El Dorado Project, licensed to the El Dorado Irrigation District (EID), is located on the South Fork American River, in El Dorado, Alpine, and Amador counties, California. The project occupies lands of the El Dorado National Forest.
The EID, several state and federal agencies, and several non-governmental agencies are working collaboratively with a facilitator to resolve certain issues relevant to this proceeding. These meetings are a part of that collaborative process. Meetings will be held as follows:
January 13 Recreation Workgroup—9 am—4 pm; January 14 Geomorphology sub-workgroup—9 am—4 pm; January 15 Plenary Meeting—9 am—4 pm; and January 16 Plenary Meeting—9 am—4 pm.
We invite the participation of all interested governmental agencies, non-governmental organizations, and the general public in these meetings.
All meetings will be held in the El Dorado Board of Directors Meeting Room, located at EID Headquarters, 2890 Mosquito Road, Placerville, California.
For further information, please contact Elizabeth Molloy at (202) 502-8771 or John Mudre at (202) 502-8902.
Take notice that on December 23, 2002, Kinder Morgan Interstate Gas Transmission LLC (KMIGT) tendered for filing as part of its FERC Gas Tariff, Fourth Revised Volume No. 1-B, Third Revised Sheet No. 37, to be effective January 23, 2003.
KMIGT states that the purpose of this filing is to revise Section 18.5 of KMIGT's General Terms and Conditions (GT&C) in order to eliminate the five-year term matching cap concerning the exercise of the right of first refusal in compliance with the Commission Order on Remand issued October 31, 2002.
KMIGT states that a copy of this filing has been served upon all of its customers and affected state commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on December 23, 2002, Northern Natural Gas Company (Northern), tendered for filing as part of its FERC Gas Tariff, Fifth Revised Volume No. 1 the following tariff sheets in compliance with the Commission's order issued on November 21, 2002, in Docket No. RP00-404,
Northern states that this filing is Northern's compliance filing under Order No. 637.
Northern further states that copies of the filing have been mailed to each of its customers and interested State Commissions.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and
Take notice that on December 23, 2002, Northern Natural Gas Company (Northern), tendered for filing in its FERC Gas Tariff, Fifth Revised Volume No. 1, the following tariff sheet in compliance with the Commission's order issued on November 21, 2002 in Docket No. RP00-404-000,
In accordance with the Commission's 637 Order, Northern states that it is filing the above-referenced tariff sheet to revise Section 32 (L) (Imbalance Trading) of the General Terms and Conditions of Northern's FERC Gas Tariff.
Northern further states that copies of the filing have been mailed to each of its customers and interested State Commissions.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
On November 29, 2002, the National Marine Fisheries Service (NMFS) filed with the Commission its final biological opinion for a proposed license amendment for the Potter Valley Project (PVP; FERC No. 77-110). The proposed amendment involves changes in the minimum flow release requirements at the project, consisting of increased releases to the Eel River, which would result in overall decreased diversions to the Russian River. The PVP is licensed to Pacific Gas and Electric Company (PG&E) and is located in Lake and Mendocino counties, California.
The NMFS biological opinion finds that the proposed increase in minimum flow releases to the Eel River is likely to jeopardize the continued existence of southern Oregon/northern California coho salmon, California coastal chinook salmon, and California steelhead and likely to adversely modify designated critical habitat in the Eel River Basin. With respect to salmonids in the Russian River, it is the NMFS' biological opinion that the proposed action is not likely to jeopardize listed species or adversely modify designated critical habitat. The biological opinion includes a “Reasonable and Prudent Alternative,” which the NMFS believes should avoid jeopardy to listed species.
The purpose of this notice is to request comments on the NMFS biological opinion, including its “Reasonable and Prudent Alternative.” Copies of the biological opinion are available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Comments on the biological opinion should be filed with the Commission within 30 days from the issuance date of this notice.
All documents (original and eight copies) should be filed with: Magalie R. Salas, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Motions to intervene and protests may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings.
For additional information concerning the foregoing, please contact John Mudre at (202) 502-8902.
Take notice that on December 27, 2002, Pine Needle LNG Company, LLC (Pine Needle), tendered for filing as part of its FERC Gas Tariff, Original Volume No. 1, Second Revised Sheet No. 80 and Second Revised Sheet No. 81. The proposed effective date of the tariff sheets is February 1, 2003.
Pine Needle states that the purpose of this filing is to comply with the Commission's “Order Accepting Tariff Filing and Requiring Compliance Filing” issued on November 27, 2002, in the referenced docket, in which the Commission directed Pine Needle to refile, within 30 days, revised tariff sheets to modify its right of first refusal provisions.
Pine Needle states that it will serve copies of the instant filing on its affected customers and interested State Commissions.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on December 23, 2002, Southern California Edison Company (SCE) tendered for filing its Wholesale Distribution Access Tariff (WDAT) in compliance with Opinion Nos. 458 and 458-A rendered in the aforementioned dockets.
SCE states that copies of this filing were served upon those persons whose names appear on the official Service List for these dockets.
Take notice that on December 23, 2002, the Midwest Independent Transmission System Operator, Inc. (the Midwest ISO) tendered for filing revisions to Attachments S (Independent Market Monitoring Plan) and S-1 (Independent Market Monitor Retention Agreement) of the Midwest ISO Open Access Transmission Tariff. The Midwest ISO states that the revisions enhance the independent status of the Independent Market Monitor, and believe they are in compliance with the Commission's November 22, 2002 Order in the same proceeding.
The Midwest ISO also seeks waiver of the Commission's regulations, 18 CFR 385.2010 with respect to service on all parties on the official service list in this proceeding. The Midwest ISO states that they have served a copy of this filing electronically, with attachments, upon all Midwest ISO Members, Member representatives of Transmission Owners and Non-Transmission Owners, the Midwest ISO Advisory Committee participants, Policy Subcommittee participants, as well as all state commissions within the region. In addition, the filing has been posted electronically on the Midwest ISO's Web site at
Take notice that on December 20, 2002, Consolidated Edison Company of New York, Inc. (Con Edison) tendered for filing a revised unexecuted Interconnection Agreement (Agreement) between Con Edison and PSEG Power In-City I, LLC (PSEG Power). Con Edison stated that the filing was made in compliance with the Order Accepting for Filing, with Modifications, Proposed Interconnection Agreement, issued on November 20, 2002 in this proceeding. The revised Agreement has a designated effective date of September 1, 2002.
Con Edison stated that copies of the filing were served upon all parties to this proceeding.
Take notice that on December 20, 2002, ISO New England Inc. submitted a compliance filing providing a status report on the implementation of Standard Market Design in New England.
Take notice that on December 23, 2002, the New York Independent System Operator, Inc. (NYISO) tendered for filing a compliance filing in accordance with the Commission's November 22, 2002 order in the above-captioned proceeding.
The NYISO states that it has served a copy of this filing to all parties that have executed Service Agreements under the NYISO's Open-Access Transmission Tariff or Services Tariff, the New York State Public Service Commission and to the electric utility regulatory agencies in New Jersey and Pennsylvania.
Take notice that on December 23, 2002, Pacific Gas and Electric Company (PG&E) tendered for filing unexecuted copies of: (i) A Wholesale Distribution Tariff (WDT) Service Agreement (Service Agreement) between PG&E and Hercules Municipal Utility (HMU); and (ii) an Interconnection Agreement (IA) between PG&E and HMU.
The Service Agreement is submitted pursuant to the PG&E wholesale distribution tariff and permits PG&E to recover the ongoing costs for service required over PG&E's distribution facilities. The IA provides the terms and conditions for the continued interconnection of the Electric Systems of HMU and PG&E.
PG&E has requested certain waivers for a proposed effective date of January 1, 2003. Copies of this filing have been served upon HMU, the California Independent System Operator Corporation and the California Public Utilities Commission.
Take notice that on December 23, 2002 New York State Electric & Gas Corporation (NYSEG) tendered for filing pursuant to Section 205 of the Federal Power Act and Section 35.13 of the Federal Energy Regulatory Commission's (FERC or Commission) Regulations, a supplement to Rate Schedule 117 filed with FERC corresponding to an Agreement with the Delaware County Electric Cooperative (the Cooperative).
This rate filing is made pursuant to Section 1 (c) and Section 3(a) through (c) of Article IV of the June 1, 1977 Facilities Agreement between NYSEG and the Cooperative, filed with FERC. The annual charges for routine operation and maintenance and general expenses, as well as revenue and property taxes are revised based on data taken from NYSEG's Annual Report to the Federal Energy Regulatory Commission (FERC Form 1) for the twelve month period ending December 31, 2001. The revised facilities charge is levied on the cost of the 34.5 kV tie line from Taylor Road to the Jefferson Substation, constructed by NYSEG for the sole use of the Cooperative.
NYSEG requests an effective date of January 1, 2003. NYSEG also states that copies of the filing were served upon the Delaware County Electric Cooperative, Inc. and the Public Service Commission of the State of New York.
Take notice that on December 23, 2002 New York State Electric & Gas Corporation (NYSEG) tendered for filing pursuant to Section 205 of the Federal Power Act and Section 35.13 of the Federal Energy Regulatory Commission's (FERC or Commission) Regulations, a supplement to Rate Schedule 194 filed with FERC corresponding to an Agreement with the Steuben Rural Electric Cooperative, Inc. (the Cooperative).
This rate filing is made pursuant to Section 2 (a) through (c) of Article IV of the December 1, 1977 Facilities Agreement between NYSEG and the Cooperative, filed with FERC. The annual charges for routine operation and maintenance and general expenses, as well as revenue and property taxes are revised based on data taken from NYSEG's Annual Report to the Federal Energy Regulatory Commission (FERC Form 1) for the twelve month period ending December 31, 2001. The revised facilities charge is levied on the cost of the tap of NYSEG's South Addison to Presho 34.5 transmission line. Such tap of NYSEG's transmission line connects to the Cooperative's Sullivan Road Substation and is for the sole use of the Cooperative.
NYSEG requests an effective date of January 1, 2003. NYSEG states that copies of the filing were served upon the Steuben Rural Electric Cooperative, Inc. and the Public Service Commission of the State of New York.
Take notice that on December 23, 2002, PacifiCorp, tendered for filing in accordance with 18 CFR 35
PacifiCorp states that copies of this filing were supplied to the Public Utility Commission of Oregon, the Washington Utilities and Transportation Commission, and PacifiCorp's Network Customers.
Take notice that on December 23, 2002, PacifiCorp tendered for filing in accordance with 18 CFR 35
PacificCorp states that copies of this filing were supplied to Hinson Power Company, the Public Utility Commission of Oregon and the Washington Utilities and Transportation Commission.
Take notice that on December 23, 2003, International Falls Power Company (IFPC) tendered for: (1)Filing a petition for acceptance of an initial rate schedule authorizing IFPC to make wholesale sales of power at market-based rates; (2) requests for waivers and blanket authority; and (3) a request for an effective date for its market-based rate authorization as of January 1, 2003.
Take notice that on December 23, 2002, NM Colton Genco LLC (NM Colton), NM Mid-Valley Genco LLC (NM Mid-Valley) and NM Milliken Genco LLC (NM Milliken ) (together, Applicants), requested the Commission to: (1) Accept for filing Applicants' proposed FERC Electric Tariffs, and grant their requests for blanket authority to make market-based sales of energy, capacity, and certain ancillary services; and (2) grant Applicants such waivers and authorizations necessary to transact at market-based rates.
Take notice that on December 23, 2002, the Midwest Independent Transmission System Operator, Inc. (the Midwest ISO) tendered for filing the Midwest ISO Market Mitigation Measures as Attachment S-2 to the Midwest ISO Open Access Transmission Tariff.
The Midwest ISO also seeks waiver of the Commission's regulations, 18 CFR 385.2010 with respect to service on all parties on the official service list in this proceeding. The Midwest ISO states it has served a copy of this filing electronically, with attachments, upon all Midwest ISO Members, Member representatives of Transmission Owners and Non-Transmission Owners, the Midwest ISO Advisory Committee participants, Policy Subcommittee participants, as well as all state commissions within the region. In addition, the filing has been posted electronically on the Midwest ISO's Web site at www.midwestiso.org under the heading “Filings to FERC” for other
Take notice that on December 20, 2002, PJM Interconnection, L.L.C. (PJM) submitted for filing: (1) An unexecuted network integration transmission service agreement for the Borough of Mont Alto (Mont Alto); and (2) revisions to Attachment H-11 of the PJM open access transmission tariff (PJM Tariff) to reflect the settlement credit and resulting rate for network integration transmission service for Mont Alto in the Allegheny Power (Allegheny) zone. The network service agreement reflects an “Other Supporting Facilities” charge for Mont Alto calculated by Allegheny and based upon direct assignment of the distribution facilities used to provide service to Mont Alto.
PJM requests waiver of the Commission's notice requirement to allow an effective date of December 1, 2002 for the filing, to reflect the date upon which Mont Alto began taking network integration transmission service under the PJM Tariff.
PJM states that it served a copy of its filing on Mont Alto and the Pennsylvania Public Utilities Commission.
Take notice that on December 24, 2002, Ameren Services Company (ASC) tendered for filing an unexecuted Network Integration Transmission Service Agreement and Network Operating Agreement between ASC and Ameren Energy Marketing. ASC asserts that the purpose of the Agreement is to permit ASC to provide transmission service to Ameren Energy Marketing pursuant to Ameren's Open Access Transmission Tariff.
Take notice that on December 23, 2002, PSEG Power Connecticut LLC and its parent PSEG Fossil LLC, tendered for filing with the Federal Energy Regulatory Commission (Commission) Original Rate Schedule FERC No. 1 in compliance with Wisvest Corporation,
Take notice that on December 23, 2002, the New York Independent System Operator, Inc. (NYISO), filed proposed revisions to the NYISO's Market Administration and Control Area Services Tariff (Services Tariff) and Open Access Transmission Tariff (OATT). The proposed filing would revise provisions regarding customer challenges to settlements and the NYISO's reconciliation of final settlement corrections.
The NYISO has requested that the Commission make the filing effective on January 10, 2003. NYISO also states that a copy of this filing was served upon all signatories of the NYISO's OATT and Services Tariff.
Take notice that on December 23, 2002, NorthWestern Energy, a division of NorthWestern Corporation, tendered for filing with the Federal Energy Regulatory Commission (Commission) a Notice of Succession adopting all applicable rate schedules, service agreement, tariffs and supplements thereto previously filed with the Commission by NorthWestern Energy, L.L.C. (formerly known as The Montana Power Company).
Take notice that on December 23, 2002, Sunflower Electric Power Corporation (Sunflower) submitted a petition for declaratory order granting reciprocity approval of its amended Open Access Transmission Tariff and a request for waiver of the filing fee associated with such petitions.
Take notice that on December 23, 2002, Entergy Services, Inc. (Entergy) on behalf of the Entergy Operating Companies, tendered for filing an amendment to its December 2, 2002 compliance filing submitted in the above-referenced dockets pursuant to the Federal Energy Regulatory Commission's (Commission) order in Entergy Services, Inc., 101 FERC § 61,141. Entergy filed Substitute First Revised Sheet No. 118 to replace First Revised Sheet No. 118 to detail Entergy's stated rate for Schedule No. 1 charges provided under Entergy's Open Access Transmission Tariff. The accompanying blackline to Substitute First Revised Sheet No. 118 also corrects a typographical error contained in the blackline accompanying First Revised Sheet No. 118.
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
Take notice that on December 23, 2002, Texas Gas Transmission
Texas Gas states that the purpose of this filing is to comply with conditions set forth in the Commission's delegated order dated December 6, 2002.
Texas Gas states that copies of the revised tariff sheet are being mailed to all parties on the service list.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on December 20, 2002, Transcontinental Gas Pipe Line Corporation (Transco) tendered the refund report filing in Docket Nos. RP01-245-000,
Transco states that on November 27, 2002, Transco submitted refunds (or surcharges) to all affected customers in the referenced proceedings.
Transco states that it has served copies of Attachment 1 to the filing and certain summary schedule (Appendix A to the filing) on the recipients of the refund (or surcharge) and their respective State Commissions.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed on or before January 9, 2003. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on December 27, 2002, Transcontinental Gas Pipe Line Corporation (Transco) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, Second Revised Fourth Revised Sheet No. 374O and First Revised Sheet No. 374O.00. The proposed effective date of the tariff sheets is February 1, 2003.
Transco states that the purpose of this filing is to comply with the Commission's “Order Accepting Tariff Filing and Requiring Compliance Filing” issued on November 27, 2002, in the referenced docket, in which the Commission directed Transco to refile, within 30 days, revised tariff sheets to modify its right of first refusal provisions.
Transco states that it will serve copies of the instant filing on its affected customers and interested State Commissions.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on December 23, 2002, Transcontinental Gas Pipe Line Corporation (Transco) tendered for filing as part of its FERC Gas Tariff, Third Revised Volume No. 1, Seventh Revised Twenty-First Revised Sheet No. 28, to be effective December 1, 2002.
Transco states that the purpose of the instant filing is to track rate changes attributable to storage service purchased
Transco further states that included in Appendix A attached to the filing is the explanation of the rate changes and details regarding the computation of the revised S-2 rates.
Transco states that copies of the filing are being mailed to affected customers and interested State Commissions.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed on or before January 7, 2003. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on December 27, 2002, Transwestern Pipeline Company (Transwestern) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, Substitute Eleventh Revised Sheet No. 5B.03, to become effective November 1, 2002.
Pursuant to Section 25 of the General Terms and Conditions of Transwestern's FERC Gas Tariff, Transwestern states that it is filing a corrected tariff sheet, which sets forth the corrected TCR II Reservation Surcharges that Transwestern proposes to put into effect on November 1, 2002. Transwestern states that the tariff sheet Eleventh Revised Sheet No. 5B.03, previously submitted in its October 1 filing in Docket No. RP03-2-000 reflected incorrect rates for three Current Firm Shippers.
Any person desiring to protest said filing should file a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Section 385.211 of the Commission's Rules and Regulations. All such protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on December 9, 2002, Washington Gas Light Company (WGLC) filed pursuant to section 284.123(b)(2) of the Commission's regulations, a petition for rate approval requesting that the Commission approve the proposed rates as fair and equitable for transportation and storage services performed under section 311 of the Natural Gas Policy Act of 1978 (NGPA).
WGLC proposes to establish a demand charge of $2.1841 per Dekatherm for the maximum daily quantity pursuant to its last approved rate in PR99-14-000.
Pursuant to section 284.123(b)(2)(ii), if the Commission does not act within 150 days of the date of this filing, the rates will be deemed to be fair and equitable and not in excess of an amount which interstate pipelines would be permitted to charge for similar transportation service. The Commission may, prior to the expiration of the 150 day period, extend the time for action or institute a proceeding to afford parties an opportunity for written comments and for the oral presentation of views, data, and arguments.
Any person desiring to participate in this rate proceeding must file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed with the Secretary of the Commission on or before January 15, 2003. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This petition for rate approval is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Take notice that on December 26, 2002, Wellco Services, Inc., a California corporation (Applicant), with its principal executive office at 650 Bercut Drive, Suite C, Sacramento, California 95814, filed with the Federal Energy Regulatory Commission (Commission) an application for determination of exempt wholesale generator (EWG) status pursuant to part 365 of the Commission's Regulations and Section 32 of the Public Utility Holding Company Act of 1935, as amended.
Applicant states it will be engaged directly and exclusively in the business of operating several eligible facilities and will satisfy the obligation of selling electric energy at wholesale through its contractual relationship with the owners of such eligible facilities which sell electric energy exclusively at wholesale.
Applicant states that copies of the application have been served upon the California Public Utility Commission and the Securities and Exchange Commission.
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
On December 23, 2002, Wyckoff Gas Storage Company, LLC, (Wyckoff), located at 1776 Yorktown, Houston, Texas, 77056, filed an application in the above referenced dockets, pursuant to Section 7(c) of the Natural Gas Act (NGA), and Parts 157 and 284 of the Federal Energy Regulatory Commission's (Commission) Rules and Regulations for: (1) A certificate of public convenience and necessity authorizing Wyckoff to develop, construct, own, operate, maintain, and abandon a natural gas storage facility and other associated and appurtenant facilities capable of storing 6 BCF of working gas; (2) a blanket certificate pursuant to part 284, Subpart G, authorizing Wyckoff to provide storage services on behalf of others; (3) a blanket certificate pursuant to part 157, Subpart F, authorizing Wyckoff to develop, construct, acquire, own, operate, maintain, and abandon additional facilities following construction of the facilities for which authorization is being sought under part 157, Subpart A; and (4) authorization to provide storage services at market-based rates. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Wyckoff states that it does not have market power in any relevant product or geographic market for storage services, and has submitted a market power study with its application, in support of its position that it lacks market power. Pursuant to its request for market-based rates, Wyckoff requests that the Commission waive (1) the requirement of 18 CFR 157.14 with respect to Exhibits K, L, N, and O of the application; (2) the accounting and reporting requirements of 18 CFR part 201 and 18 CFR 260.2; and the requirement to file the rate information required by 18 CFR 157.6(b)(8).
The storage facilities which Wyckoff seeks to construct and operate will be located in Steuben County, New York. The storage facilities will consist of two depleted natural gas reservoirs and two pipelines, totaling 11.5 miles, to interconnect the facilities with the existing pipeline systems of Tennessee Gas Pipeline, Dominion Transmission, Inc., and Columbia Gas Transmission Company. The proposed storage facility has a maximum gas volume of 10 BCF, of which 6 BCF is working gas, a maximum deliverability of 400 MMCF/d, and maximum injection capability of 250 MMCf/d. The facility requires the construction of 6 new injection/withdrawal wells, the re-completion of 3 existing wells, 9,470 horsepower compression. Wyckoff will offer firm and interruptible storage services on an open access and non-discriminatory basis.
Any questions regarding this application should be directed to Edmund A. Knolle, Executive Vice President, Wyckoff Gas Storage Company, LLC, 1776 Yorktown, Houston, Texas, 77056, (713) 961-3204.
There are two ways to become involved in the Commission's review of this project. First, any person wishing to obtain legal status by becoming a party to the proceedings for this project should, on or before the comment date stated below file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10). A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies of all documents filed by the applicant and by all other parties. A party must submit 14 copies of filings made in the proceeding. with the Commission and must mail a copy to the applicant and to every other party. Only parties to the
However, a person does not have to intervene in order to have comments considered. The second way to participate is by filing with the Secretary of the Commission, as soon as possible, an original and two copies of comments in support of or in opposition to this project. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding. The Commission's rules require that persons filing comments in opposition to the project provide copies of their protests only to the party or parties directly involved in the protest.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, will receive copies of the environmental documents, and will be notified of meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties. However, the non-party commenters will not receive copies of all documents filed by other parties or issued by the Commission (except for the mailing of environmental documents issued by the Commission) and will not have the right to seek court review of the Commission's final order.
The Commission may issue a preliminary determination on non-environmental issues prior to the completion of its review of the environmental aspects of the project. This preliminary determination typically considers such issues as the need for the project and its economic effect on existing customers of the applicant, on other pipelines in the area, and on landowners and communities. For example, the Commission considers the extent to which the applicant may need to exercise eminent domain to obtain rights-of-way for the proposed project and balances that against the non-environmental benefits to be provided by the project. Therefore, if a person has comments on community and landowner impacts from this proposal, it is important either to file comments or to intervene as early in the process as possible.
Protests and interventions may be filed electronically via the Internet in lieu of paper;
If the Commission decides to set the application for a formal hearing before an Administrative Law Judge, the Commission will issue another notice describing that process. At the end of the Commission's review process, a final Commission order approving or denying a certificate will be issued.
Take notice that on December 23, 2002, Wyoming Interstate Company, Ltd. (WIC) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 2, Fourth Revised Sheet No. 62, to become effective February 1, 2003.
WIC states that the tariff sheet is being filed to remove the five-year term matching cap from the right-of-first-refusal provisions of WIC's Tariff consistent with the Commission's Order on Remand.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. This filing is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
The following filings have been made with the Commission. The filings are listed in ascending order within each docket classification.
Take notice that on December 23, 2002, Phoenix Energy Associates, L.L.C. tendered for filing with the Federal Energy Regulatory Commission (Commission) in response to a deficiency letter from the Commission, an amendment to its Rate Schedule, a contact number for the corporation and a waiver of the effective date for the Rate Schedule.
Comment Date: January 13, 2003.
Take notice that on December 23, 2002, XL Weather & Energy Inc. (XL Weather) submitted for filing a revised market-based rate schedule (Rate Schedule) reflecting its name change from Element Re Capital Products Inc. XL Weather requests a waiver of the 60-day prior notice requirement to allow its revised Rate Schedule to become effective as of December 11, 2002
Take notice that on December 24, 2002, PJM Interconnection, L.L.C. (PJM), submitted for filing amendments to the Appendix of Attachment K of the PJM Open Access Transmission Tariff and
PJM states that copies of this filing were served upon all PJM members and each state electric utility regulatory commission in the PJM region.
Take notice that on December 24, 2002, PJM Interconnection, L.L.C. (PJM), submitted for filing amendments to the governance provisions of the PJM Operating Agreement to: (1) Add two new members to the PJM Board of Managers (Board); (2) establish a Nominating Committee to choose candidates for Board vacancies; and (3) permit election of Board members and the Chair and Vice Chair of the Members Committee by a simple majority of voting sectors.
PJM requests an effective date of December 25 for the amendments. PJM also states that copies of this filing were served upon all PJM members and each state electric utility regulatory commission in the PJM region.
Take notice that on December 24, 2002, Southern California Edison Company (SCE) tendered for filing the Amended and Restated Service Agreement For Wholesale Distribution Service (Agreement) between SCE and SCE QF Resources. SCE respectfully requests an effective date of December 25, 2002 for the revisions.
The Agreement serves to provide the terms and conditions under which SCE provides Distribution Service under SCE's FERC Electric Tariff, Original Volume No. 5.
SCE states that copies of this filing were served upon the Public Utilities Commission of the State of California and SCE QF Resources.
Take notice that on December 24, 2002, American Transmission Company LLC (ATCLLC) tendered for filing a Generation-Transmission Interconnection Agreement between ATCLLC and Madison Gas and Electric Company.
ATCLLC requests an effective date of November 24, 2002.
Take notice that on December 24, 2002, Ameren Services Company (ASC) tendered for filing an executed Service Agreement for Firm Point-to-Point Services between ASC and Duke Energy Trading and Marketing, L.L.C. ASC asserts that the purpose of the Agreement is to permit ASC to provide transmission service to Duke Energy Trading and Marketing, L.L.C. pursuant to Ameren's Open Access Transmission Tariff.
Take notice that on December 24, 2002, Ameren Services Company (ASC) tendered for filing an unexecuted Service Agreement for Firm Point-to-Point Services between ASC and Ameren Energy. ASC asserts that the purpose of the Agreement is to permit ASC to provide transmission service to Ameren Energy pursuant to Ameren's Open Access Transmission Tariff.
Take notice that on December 23, 2002 Bangor Hydro-Electric Company (Bangor Hydro) submitted for filing, pursuant to section 205 of the Federal Power Act, an executed Entitlement and Firm Energy Agreement between Bangor Hydro and Constellation Power Source, Inc. (CPS).
Bangor Hydro states that copies of this filing were served upon CPS, Constellation Power Source Maine, LLC, the Maine Public Utilities Commission, and the Maine Public Advocate.
Take notice that on December 23, 2002, Southern California Edison Company (SCE) tendered for filing with the Federal Energy Regulatory Commission (Commission) revisions to its Transmission Owner Tariff (TO Tariff), FERC Electric Tariff, Substitute First Revised Original Volume No. 6, to reflect (1) the annual update of the Transmission Revenue Balancing Account Adjustment and the Transmission Access Charge Balancing Account Adjustment; (2) the inclusion in the TO Tariff of rates for transmission service applicable to certain specified existing transmission contracts; (3) the Commission's Opinion No. 458-A in Docket No. ER97-2355-002; and (4) SCE's revised interconnection procedures which were accepted by the Commission's June 4, 2002 order in SCE's Docket Nos. EL00-95-025 and EL00-98-024.
SCE states that copies of this filing were served upon the Public Utilities Commission of the State of California, the California Independent System Operator, the service list in Docket No. ER97-2355-002, the Cities of Azusa, Banning, Colton, Riverside, California, the Department of Water and Power of the City of Los Angeles, California, and all Scheduling Coordinators certified by the California Independent System Operator.
Take notice that on December 23, 2002, San Diego Gas & Electric Company (SDG&E) tendered for filing with the Federal Energy Regulatory Commission (Commission) Original Volume No. 7 to its Transmission Owner Tariff, superseding Volume No. 6 in its entirety. Volume No. 7 incorporates changes resulting from prior Commission orders that accepted for filing SDG&E's revised generator interconnection procedures, revised Reliability Must Run rates, and Supplemental Transmission Surcharge Rates for upgrades to its Imperial Valley-La Rosita transmission line and the costs of increased security for its transmission system. Along with these approved changes, SDG&E has eliminated certain rate schedules and added a new schedule with the approval of the California Public Utilities Commission, eliminated references to the California Power Exchange, eliminated Ancillary Services it no longer offers since divestiture of its generation assets, and updated the contact information for regulatory filings.
SDG&E requests that the Commission waive the sixty-day notice requirement and establish an effective date of December 31, 2002 for Volume No. 7.
SDG&E states that copies of the filing have been served on the California Public Utilities Commission and the California Independent System Operator Corporation.
Take notice that on December 26, 2002, Calpine PowerAmerica—CA, LLC tendered for filing, under section'205 of the Federal Power Act (FPA), a request for authorization to make wholesale sales of electric energy, capacity, replacement reserves, and ancillary services at market-based rates, to reassign transmission capacity, and to resell firm transmission rights.
Take notice that on December 27, 2002, Aquila, Inc. (Aquila), filed with the Federal Energy Regulatory Commission (Commission), pursuant to Section 205 of the Federal Power Act, 16 U.S.C. 824d, and part 35 of the Commission Regulations, 18 CFR part 35, an Interconnection Agreement between Aquila, Inc. d/b/a WestPlains Energy-Kansas and Russell Municipal Power and Light dated as of December 9, 2002. The Interconnection Agreement is filed as Service Agreement No. 104 to Aquila FERC Electric Tariff, Third Revised Volume No. 26.
The NEPOOL Participants Committee states that copies of these materials were sent to the NEPOOL Participants and the New England state governors and regulatory commissions.
Any person desiring to intervene or to protest this filing should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a motion to intervene. All such motions or protests should be filed on or before the comment date, and, to the extent applicable, must be served on the applicant and on any other person designated on the official service list. This filing is available for review at the Commission or may be viewed on the Commission's Web site at
Environmental Protection Agency (EPA).
Notice of availability of grantee performance evaluation reports.
EPA's grant regulations (40 CFR 35.150) require the Agency to evaluate the performance of agencies which receive grants. EPA's regulations for regional consistency (40 CFR 56.7) require that the Agency notify the public of the availability of the reports of such evaluations. EPA performed end-of-year evaluations of the state air pollution control program at North Carolina Department of Environment and Natural Resources, and the local program at Memphis-Shelby County Health Department, Tennessee. These evaluations were conducted to assess the agencies' performance under the grants awarded by EPA under authority of section 105 of the Clean Air Act. EPA Region 4 has prepared reports for each agency identified above and these reports are now available for public inspection. Evaluations for the other seven states and 15 local governments which have air pollution control programs were published November 18, 2002.
The reports may be examined at the EPA's Region 4 office, 61 Forsyth Street, SW, Atlanta, Georgia 30303, in the Air, Pesticides, and Toxics Management Division.
Rayna Brown (404) 562-9093. She may be contacted at the above Region 4 address.
Environmental Protection Agency (EPA).
Notice and request for comments.
This document announces EPA's preliminary finding that, at this time, formal program withdrawal proceedings should not be initiated for Michigan's approved Clean Water Act section 404 permit program.
Comments on this document must be received in writing by March 10, 2003.
Written comments on today's notice may be submitted to Jo Lynn Traub, Director, Water Division, Attn: Michigan Section 404 Program Review, U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. As an alternative, EPA will accept comments electronically. Comments should be sent to the following Internet Email Address:
Sue Elston, Watersheds and Wetlands Branch, at the EPA address noted above or by telephone at (312) 886-6115. The Report containing EPA's preliminary findings is available via the Internet at the following location:
On October 16, 1984, EPA approved the regulatory permitting program that the State of Michigan had submitted pursuant to the requirements and guidelines contained in subsections 404(g) and 404(h) of the Clean Water Act. 33 U.S.C. 1344(g) and (h). (See 49 FR 38947, October 2, 1984.) In that notice of approval, EPA noted that the Administrator was required to approve a program submitted by a state pursuant to subsection 404(g) of the CWA unless that program does not meet the requirements of subsection 404(h) of the CWA, and EPA then stated that it had determined that the program submitted by the State of Michigan met those statutory requirements. The components of the approved program are stated at 40 CFR 233.70 . When EPA initially approved the program, Michigan did not have authority to carry out the program in Indian lands. EPA now concludes, as set forth more fully in the Report, that Michigan remains without authorization to carry out the program in Indian lands, which EPA defines to be the same as Indian Country as defined by statute (18 U.S.C. 1151).
The Michigan state agency authorized in 1984 to administer the approved section 404 program was the Department of Natural Resources. Later, the State of Michigan reorganized its agencies and transferred authority to administer the approved section 404 program to the Department of Environmental Quality (MDEQ). EPA approved this transfer on November 14, 1997 (62 FR 61173, November 14, 1997). The State of Michigan was the first state in the nation, and currently is one of only two states, to be authorized to administer a CWA section 404 permit program within its borders.
Recently EPA decided to perform an informal review of Michigan's approved section 404 program and the program's administration by MDEQ. EPA so decided, among other reasons, because since 1984 there have been a number of changes to the relevant federal and state statutes and regulations, and because a body of State of Michigan judicial and administrative opinions relevant to permitting under the section 404 program had developed. In addition, in recent years EPA has received a number of comments and complaints about Michigan's administration of the approved section 404 program. Among these was the February 1997 submission by the Michigan Environmental Council and the Lone Tree Council which requested that EPA either ensure reform of Michigan's section 404 program or withdraw approval of the section 404 program. EPA responded that it was treating the February 1997 request as a petition to withdraw, and committed to performing an informal review of that petition's allegations, as provided for by 40 CFR 233.53(c)(1). See documents published at 62 FR 14846, March 28, 1997, and 62 FR 61173, 61174, November 14, 1997. The federal regulations allow EPA to conduct an informal review of allegations made in a petition to withdraw a section 404 program approval, 40 CFR 233.53(c).
In deciding to informally review Michigan's section 404 program, however, EPA decided to comprehensively review all aspects of Michigan's administration of the section 404 program—both with respect to permit processing and permit decision making and with respect to enforcement of the provisions of CWA section 404 and section 404 permits issued by MDEQ—and to comprehensively review the adequacy of Michigan's current legal authorities which establish and embody Michigan's section 404 program. Thus, EPA did not limit itself to reviewing the few matters of concern mentioned in the petition submitted by the Michigan Environmental Council and the Lone Tree Council.
The Regional Administrator of Region 5, EPA, informed the Director of MDEQ of the commencement of the section 404 program review in a letter of January 22, 1998.
To perform its program review, EPA requested that the State of Michigan provide an updated program description (40 CFR 233.11); a new Attorney General's Statement confirming that state laws and regulations provide adequate authority to administer the section 404 program and addressing the other subjects mentioned at 40 CFR 233.12; and a compilation of all current, relevant Michigan laws and regulations. The State of Michigan submitted these materials to EPA in June 1999, and submitted new and updated information to EPA between June 1999 and the date of this Notice.
As well as reviewing and analyzing the documents submitted by the State of Michigan, during its program review EPA reviewed hundreds of permitting files, enforcement files, and citizen complaint files that MDEQ generated between 1995 and 1999, visiting all thirteen MDEQ district offices and the central MDEQ office in Lansing, Michigan. EPA also conducted numerous interviews of MDEQ personnel in the field and central offices. Additionally, EPA reviewed most of MDEQ's written decisions issued in contested permitting cases between January 1994 and early 1999. The contested case decisions represent final agency action by MDEQ in matters involving individual permits processed under the approved state program. Also as part of its program review, EPA consulted with offices of the U.S. Fish and Wildlife Service and the U.S. Army Corps of Engineers which interact with MDEQ during its administration of the program. Finally, during January and May of 1999 EPA held four availability sessions to receive comments from interested persons.
EPA now has completed its review and analysis of all materials. EPA has preliminarily concluded that the review findings do not warrant a recommendation to the Administrator to initiate formal program withdrawal proceedings, but do warrant corrective action on the State's part. In arriving at this conclusion, EPA analyzed whether the circumstances for program withdrawal which are set forth at 40 CFR 233.53(b) exist and, with respect to those areas of concern to EPA, whether the State of Michigan has indicated its willingness to take timely corrective actions to address EPA's concerns. In performing the program review, EPA also reviewed the criteria for initial section 404 program approval which are set forth in subsection 404(h) of the CWA.
EPA has found both deficiencies and strengths in Michigan's legal authorities establishing the approved section 404 program and in the program's administration by MDEQ. These strengths, deficiencies, and proposed corrective actions are identified in the document titled
Through its review of the State of Michigan's legal authorities, EPA has determined that the State's laws and regulations are, for the most part, consistent with section 404 of the Clean Water Act, but has identified deficiencies in a few specific areas, resulting in a preliminary conclusion by EPA that the State does not have legal authority fully consistent with section 404 of the Clean Water Act and the State's implementation of the section 404 program is not entirely consistent with the requirements of 40 CFR part 233.
The scope of regulatory jurisdiction granted to MDEQ by Michigan law is one area of concern for EPA. In many Michigan counties MDEQ has no jurisdiction over a non-contiguous wetland even if that wetland is ecologically significant or large (unless MDEQ has individually determined that the wetland has essential natural resource value). EPA acknowledges that the extent of federal CWA jurisdiction over isolated wetlands recently was limited by the United States Supreme Court decision in
Another area of concern is that Michigan law appears to exempt a wider range of activities than does the CWA under subsection 404(f) of the CWA, including exemptions for discharges occurring as part of certain agricultural activities, discharges related to drain creation and improvement, and discharges associated with iron and copper mining tailings basins. The State has agreed to seek statutory amendments and the promulgation of administrative rules to address these issues.
EPA's examination of Michigan law included review of MDEQ's authorities and procedures for issuing permits. MDEQ issues section 404 and State permits for activities in waters of the United States under two different state statutes: Part 301 and Part 303 of the Natural Resources and Environmental Protection Act. EPA has several concerns with regard to MDEQ's permitting authority. The first concern is that MDEQ may not have clear authority to require all permit conditions required under federal law, and may not have clear authority to revoke and modify issued permits in all situations provided for by federal law. The State has agreed to promulgation of administrative rules to resolve these concerns. EPA also considered the Michigan statutory provision which directs that a permit under Part 303 shall issue within 90 days of a triggering event, and found this provision does not pose an impediment to MDEQ's proper implementation of the section 404 program.
Michigan law also fails to require that MDEQ incorporate the section 404(b)(1) guidelines (or state environmental criteria which are equivalent to the section 404(b)(1) guidelines) into its permit decision making processes. The criteria in the section 404(b)(1) guidelines as to which MDEQ-issued permits are not explicitly required to meet include application of a proper feasible and prudent alternatives analysis, application of the correct water dependency test, a bar on issuing permits which will jeopardize federally threatened or endangered species or their critical habitats, and a bar on issuing permits which will result in significant degradation of waters of the United States. The State has already promulgated administrative rules that address many of these concerns, and has agreed to promulgate rules to address the remaining issues.
EPA's review of contested case decisions issued over the years by MDEQ's Office of Administrative Hearings found that final agency decisions frequently have failed to interpret and apply Michigan law in a manner that is consistent with the federal requirements for administering a section 404 program; the result has been the issuance of permits—which constitute section 404 permits—for activities which have not been subjected to proper analyses for water dependency, satisfaction of the section 404(b)(1) guidelines, and other federal criteria, thereby undermining the State's ability to administer a program which meets the terms of section 404(h) of the CWA. For these reasons, EPA has found that certain changes must be made to some Michigan statutory provisions and administrative rules in order to make them more clearly consistent with federal law. MDEQ has acknowledged EPA's concerns and has proposed what appear to be effective corrective actions to resolve these concerns. Some of these corrective actions already have been taken by MDEQ, while others are proposed for the future.
With regard to MDEQ's administration of the section 404 program, the program review found that, in general, MDEQ is doing a good job. MDEQ is operating its regulatory program in a manner consistent with the State Program Regulations found at 40 CFR part 233. The majority of permit files which EPA reviewed were found to contain the necessary documentation supporting the permit decision. The State's general permit program was found to be consistent with the federal requirements for general permits. MDEQ's permit application process was found to be consistent with the requirements in the federal regulations. MDEQ is including appropriate conditions in its permits to ensure compliance with the section 404(b)(1) guidelines and applicable water quality standards, and the duration of permits issued is consistent with federal requirements.
This program review did, however, identify several problems with MDEQ's administration of its section 404 permit program. The program review identified a need for MDEQ, USFWS and EPA to develop a procedure regarding how the agencies will coordinate when a potential project may have some effect on a federally threatened or endangered species or critical habitat.
The EPA has identified the need for MDEQ to modify its public notice procedures to make them consistent with 40 CFR 233.32. EPA found that MDEQ public notice procedures do not ensure that interested members of the public always have sufficient
As part of our review of MDEQ's enforcement efforts, citizen complaint files were reviewed in all of the MDEQ district offices. Based on the annual reports prepared by MDEQ, an average of 800 citizen complaints are investigated each year. The program review found that district offices make a concerted effort to address complaints. Generally, the review found complaints were routinely followed with site inspections, which usually were made within two weeks of receipt of the complaint.
An opportunity for public participation in the State's enforcement process is required by federal law, and MDEQ has agreed to implement procedures to comply with the requirements of 40 CFR 233.41(e)(2).
This review concludes that MDEQ has maintained a satisfactory enforcement program. MDEQ has designed the enforcement program to identify un-permitted activities and initiates enforcement responses in a timely manner. Overall, Michigan's enforcement program achieves appropriate injunctive relief through wetlands restoration and wetland mitigation and obtains adequate penalties. The review of MDEQ's use of administrative consent agreements found that the agreements effectively resolved the violations at issue and resulted in additional environmental restoration and conservation of wetland.
Although there is no legal requirement that EPA receive public comment regarding the preliminary determinations of its informal review of Michigan's section 404 program, EPA has decided to accept such public comments for a period of sixty (60) days from the publication date of this notice. EPA seeks public comment on its preliminary determination that formal withdrawal proceedings not be commenced, as well as EPA's detailed findings regarding MDEQ's administration of the permitting and enforcement program and the adequacy of Michigan's legal authorities. If public comments received by EPA indicate significant public interest in the holding of a public hearing, EPA may decide to hold such a hearing.
Environmental Protection Agency (EPA).
Proposed permit.
EPA is today proposing to issue a general permit under sections 102(a) and 104(c) of the Marine Protection, Research, and Sanctuaries Act (MPRSA) to the National Science Foundation (NSF) for the disposal at sea of man-made ice piers from its base at McMurdo Sound on Antarctica. The NSF is the agency of the United States Government responsible for oversight of the United States Antarctic Program. The NSF currently operates three major bases in Antarctica: McMurdo Station on Ross Island, adjacent to McMurdo Sound; Palmer Station, near the western terminus of the Antarctic Peninsula; and Amundsen-Scott South Pole Station, at the geographic South Pole. McMurdo Station is the largest of the three stations, and serves as the primary logistics base for Antarctica. In order to unload supplies at McMurdo Station, ships dock at an ice pier at McMurdo Station; this man-made pier has a normal life span of three to five years. At the end of its useful life, all transportable equipment, materials, and debris are removed, the pier is cast loose from its moorings at the base and towed out to McMurdo Sound for disposal, where it melts naturally. Issuance of this general permit is necessary because the pier must be towed out to sea for disposal at the end of its useful life. This proposed general permit is intended to protect the marine environment by setting forth specific permit terms and conditions, including operating conditions during use of the pier and clean-up, with which the NSF must comply before the disposal of such ice piers would take place.
Written comments on this proposed general permit will be accepted until February 6, 2003. All comments must be received or postmarked by midnight of February 6, 2003, or must be delivered by hand by the close of business of that date to the address specified below.
This proposed permit is identified as Docket No. OW-2002-0048. Please send an original and three copies of your comments and enclosures (including references) to the “OW-2002-0048, Comment Clerk”, Water Docket (MC 4101T), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Hand deliveries should be delivered to: EPA Water Docket, 1301 Constitution Avenue, NW., Room B-135, Washington, DC 20004. Electronic mail comments will be accepted at the e-mail address,
David Redford, Chief, Marine Pollution Control Branch, Oceans and Coastal Protection Division (4504T), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, N.W.,
The NSF was established as an independent agency of the Executive Branch of the government in 1950. Following the International Geophysical Year in 1957-1958, President Eisenhower decided that the NSF should have full responsibility for the formulation, coordination, and management of the United States Antarctic Program (USAP). The NSF currently operates three major bases in Antarctica: McMurdo Station on Ross Island, adjacent to McMurdo Sound; Palmer Station, near the western terminus of the Antarctic Peninsula; and Amundsen-Scott South Pole Station, at the geographic South Pole.
McMurdo Station, which is located on the southern tip of Hut Point Peninsula on Ross Island, is the largest of the three stations. This station is the logistics hub of the USAP, with a harbor, landing strips on both sea ice and shelf ice, and a helicopter pad. The majority of personnel and supplies destined for bases and field camps on Antarctica pass through McMurdo Station.
The approximately 85 buildings at the Station range in size from a small radio shack to large three-story structures. This year-round facility has a peak summer population of approximately 1150 persons, and a winter population of 150 to 200. McMurdo Station is the most southerly port in the world that is accessible by ship.
For most of the year, McMurdo Station is closed in by sea ice. However, in early January, a U.S. Coast Guard icebreaker opens a channel to the harbor at McMurdo Station, allowing a fuel tanker and a supply vessel to replenish the station. The tanker normally arrives in mid-January to unload AN-8 fuel (JP-8 fuel with an icing inhibitor added), and unleaded gasoline. The AN-8 fuel is the primary fuel for power generation, heating sources, and aircraft; the gasoline is used for small portable equipment. In early February, the resupply vessel arrives and off-loads the annual provision of supplies for McMurdo Station and other U.S. Antarctic bases. After unloading its cargo, the supply vessel is backloaded with the previous year's accumulation of wastes, which are returned to the United States for disposal and recycling.
To permit the various vessels to dock and unload at McMurdo Station, construction of an ice pier is necessary. This ice pier, which is approximately 800 feet long, 300 feet wide, and 22 feet thick, is constructed during the winter season in the following manner.
Construction begins when the frozen ice pack in McMurdo Sound reaches approximately 0.6 m (2 ft) in thickness. Snow is bermed to a depth of about 0.6 m (2 ft) on the ice pack, at the perimeter of what will be the ice pier. Heavy-duty pumps are then used to flood the ice pack inside the bermed snow with about 10 cm (4 in) of seawater. This water freezes solid in about 24 hours, when the process is repeated with another 10 cm of seawater. This process is repeated until the ice thickness of the pier reaches approximately 1.5 m (5 ft). When that thickness of the pier is achieved, several holes are drilled in the ice near the periphery of the ice pier, and lengths of 2″ steel pipe are inserted vertically into the holes. The space surrounding the pipe-ice interface is flooded with water and allowed to freeze, fixing the pipes in the ice pier. Approximately 2,100 m (6,900 ft) of 1″ steel cable is then woven around the steel pipes frozen in the ice, providing a horizontal reinforcement mat for the first layer of the ice pier.
The entire process is repeated three more times, until the ice pier is approximately 6.7 m (22 ft) thick. However, the horizontal mat of steel cables is not employed in the last repetition of the process; thus, there are three layers of cable reinforcement in the completed ice pier. When the final layer is created and the pier is approximately 6.7 m (22 ft) thick, three or four wooden utility poles are vertically embedded approximately four feet deep in the ice pier to provide support for electrical cables for lighting, power for equipment, and telephone service to structures on the pier. These poles consist of natural, chemically-untreated wood. In addition, just before the pier is completed, several shorter utility poles are frozen into the proximal edge of the pier, to serve as bollards, to attach the pier to the mainland at McMurdo. When the construction of the ice portion of the pier is completed, a 15-20 cm (6-8 in) thick layer of 2 cm (
In summary, the following types and approximate quantities of materials would normally be used in the construction of an ice pier at McMurdo Sound Station:
At the end of each austral summer season, the pier is inspected, and as much of the gravel non-slip surface as possible is removed and stored for use the following season. If the pier is to be reused the next year, it is flooded with seawater during the winter to create a new surface for the following summer season. The pier has a normal viable life of three to five years; after that period, factors such as stress cracking and erosion no longer allow the pier to be used. The erosion of the seaward face of the ice pier is caused by such factors as wave action, contact of vessels with the pier face, and the discharge of coolant water from ships docked at the pier.
When the pier has deteriorated to the point that it is not capable of being used the following season, the wooden poles are cut off just above the surface of the ice, the gravel is scraped off for use in the following season, all transportable equipment, materials, and debris are removed, and the pier is physically separated from its attachment to McMurdo Base at the end of the austral summer. It is then towed by a U.S. Coast Guard cutter into McMurdo Sound past the distal end of the open channel in the ice, as near to the Ross Sea currents as possible. The pier is set free in a direction that will allow it to flow with the Ross Sea currents, away from the open channel in the ice. The pier then floats free amidst the ice pack, where it mixes with the annual sea ice, and eventually disintegrates.
Complete information is not available on the time required for melting and disintegration of an ice pier, or on the path an ice pier takes after its release. NSF scientists have estimated, however, that melting and disintegration will take place over several years, and that ice piers will drift from their release point in McMurdo Sound, into the Antarctic Sea, and eventually into the Southern Ocean, where they will presumably float with the currents of the Southern Ocean. These estimates are supported by tracking data collected on an ice pier disposed by NSF in February 1999 under an emergency permit. One condition of that permit was that the pier be tracked by the use of emplaced pingers for a period of one year. Tracking records indicated that the pier traveled approximately 600 miles in a generally northerly direction into the Southern Ocean during the first six months, when it then became locked in ice. No further movement of the ice pier was detected in the second six months of the year-long tracking period. These tracking results confirm what NSF staff believed would happen to any released ice piers.
Section 102(a) of the MPRSA, 33 U.S.C. 1412(a), requires that agencies or instrumentalities of the United States obtain a permit to transport any material from any location for the purpose of dumping into ocean waters. Section 104(c) of the MPRSA, 33 U.S.C. 1414(c), and EPA regulations at 40 CFR 220.3(a) authorize the issuance of a general permit under the MPRSA for the dumping of materials which have a minimal adverse environmental impact, and are generally disposed of in small quantities. General permits currently exist for burial at sea for both cremated and non-cremated human remains, for vessels used by the United States Navy for the purposes of target practice and testing ordnance, and for vessels transported for the purpose of disposal.
The proposed towing of ice piers by the NSF from McMurdo Station for disposal at sea constitutes transportation of material for the purpose of dumping in ocean waters, so it is subject to the MPRSA. The NSF has requested the issuance of a general ocean dumping permit for its ice piers.
On October 2, 1996, President Clinton signed into law the Antarctic Science, Tourism, and Conservation Act of 1996, amending the Antarctic Conservation Act of 1978. This law is designed to implement the provisions of the Protocol on Environmental Protection to the Antarctic Treaty (“the Protocol”). The Protocol was signed by the U.S. on October 4, 1991, ratified on April 17, 1997, and entered into force on January 18, 1998. The Protocol builds on the Antarctic Treaty to extend its effectiveness as a mechanism for ensuring protection of the Antarctic environment. It designates Antarctica as a natural reserve, devoted to peace and science, and sets forth basic principles and detailed, mandatory rules applicable to human activities in Antarctica. It prohibits all activities relating to mineral resources in Antarctica, except for scientific research. It commits signatories to the Protocol (known as Parties) to environmental impact assessment procedures for proposed activities, both governmental and private. Among other things, it also requires Parties to protect Antarctic flora and fauna, and imposes strict limitations on disposal of wastes in Antarctica, and discharges of pollutants into Antarctic waters.
Several sets of regulations exist that will assist in implementation of the Protocol. These include NSF regulations regarding environmental impact assessment of proposed Foundation actions in Antarctica (45 CFR part 641), NSF waste regulations for Antarctica (45 CFR part 671), and EPA regulations regarding environmental impact assessment of non-governmental activities in Antarctica (40 CFR part 8).
EPA wishes to clarify that its proposal to issue a general permit under the MPRSA does not indicate whether the proposed activity is in compliance with other relevant obligations under the Protocol and implementing legislation. Accordingly, the responsible United States authority must make separate determinations with respect to other relevant obligations, and the Agency will coordinate with the responsible authority, as appropriate, in the Agency's consideration of the issuance of a general permit under the MPRSA.
In this regard, the Agency notes that the NSF has completed a USAP Final Environmental Impact Statement (June 1980), a USAP Final Supplemental Environmental Impact Statement (October 1991), and an Initial Environmental Evaluation (May 1992), all of which address in some aspects the construction, operation, and disposal of ice piers at McMurdo Station in Antarctica. All of these documents are available for review at the Office of Polar Programs of the NSF, 4201 Wilson Boulevard, Arlington, VA 22230 (Contact: Joyce Jatko, telephone: (703) 292-8030). The documents did not identify any potential environmental impacts from the disposal of ice piers, other than the minor navigational hazard that would be equivalent to that posed by an ice floe or a small iceberg. The Agency considered the analyses contained in the three documents cited above in developing this proposed general permit.
Because the natural creation and disintegration of icebergs occurs constantly in the Antarctic environment, the primary ice component of the NSF piers is not of environmental concern. However, the ice piers also contain approximately 21,000 feet of 1″ steel cable and 650 feet of 2″ steel pipe between the ice layers, that eventually will fall, as the pier disintegrates, to the bottom of McMurdo Sound, the Antarctic Sea, or the Southern Ocean. The steel cable and pipe will sink permanently to the bottom, and over considerable time, will dissolve through oxidative processes, unless they fall into very deep anaerobic waters, where they would not dissolve.
Because there are approximately 2,100 m (6,900 ft) of cable frozen in each of the three layers of the ice pier, it is possible that during the melting process there may be loops of cable suspended from the bottom of the ice pier. These loops will remain for brief periods of time before the cable in each layer is released from the bottom of the pier due to melting. The entire length of 2,100 m (6,900 ft) of cable would then descend rapidly to the ocean floor.
The Agency has considered the possibility of these loops of cable entangling organisms in the marine environment. The only animals that could potentially become entangled in the suspended loops of cable are large whales of the Antarctic Sea or the Southern Ocean. However, these animals are known to have sophisticated natural sonar (sound navigation and ranging) systems, are able to detect and precisely identify objects at considerable distances with those systems, and normally will avoid large objects such as icebergs. In addition, because in excess of 80 percent of icebergs (and the ice pier) is submerged beneath the surface, there is no reason to believe any cetaceans will approach an ice pier, by either coming near it on the surface to breathe, or by swimming beneath it. Thus, the possibility of entanglement of large animals by suspended loops of cable from the ice pier is regarded as very minimal.
Additionally, the Agency and the NSF have discussed the possibility of seals becoming ensnared in any loops of cable hanging from the ice pier. Although seals are known to routinely haul out on ice floes to rest and to breed, EPA does not believe there is any danger from any cables embedded in the edges of the ice pier to Antarctic seal populations in their passage from the ocean to the ice surface, because any loops of cable will be visible and easily avoided.
There is no danger to any marine avian species from the release of the ice piers. Penguins, if they are in the area, can easily hop onto, and off, the edge of the ice pier, if necessary. Further, there is no permanent penguin population in the area of McMurdo Station on a year-round basis. Any penguins in the area arrive at their usual breeding rookeries in late October of each year. Their eggs are hatched in November, the chicks are fledged no later than late December of each year, and all penguins, except for a very few stragglers, are gone from the McMurdo Station area by late January every year. On those years when the ice pier must be cut loose, the detachment
Further, both the National Marine Fisheries Service and the Fish and Wildlife Service have agreed that the disposal of ice piers from McMurdo Station will not have any effect on endangered or threatened species, nor is the action likely to adversely affect any critical habitats.
In addition, the time that the loops of cable are suspended from the bottom of the ice pier would be expected to be relatively brief. Once a substantial portion of the cable in each layer is released from the ice by melting processes, the weight of the suspended cable will act to detach the remainder of the layer of cable from the pier. As discussed above, the entire length of cable would then fall rapidly to the ocean bottom.
Although the wooden utility poles and the bollards are cut off at the level of the ice surface before the pier is towed for dumping, the six or seven stump ends of the poles, approximately four feet long, remain frozen in the pier. (The NSF requires that the longer, exposed lengths of the utility poles be returned for recycling back to the United States; they are never disposed of in the ocean). When eventually released from the pier during the disintegration process, the stump ends of the poles could float for several years, providing substrate for attachment of sessile organisms. Eventually, however, the poles will be destroyed by biological processes. Navigational hazards from the poles are unlikely, because of their small size and limited number.
Of potentially greater environmental concern are any operational discharges, leaks, or spills that may have contaminated the surface of the pier over the period of its existence. Examples of such possible releases include AN-8 (jet fuel formulated for cold environment use by heavy diesel engines and aircraft) or gasoline during the annual unloading process from the resupply oil tanker; spills of material due to leaks or cracks in containers or drums during the annual offloading from the supply vessel; leaks of AN-8, gasoline, engine lubricating oil, hydraulic fluid, or ethylene glycol (antifreeze) from equipment working on the pier; or spills of liquids or chemicals being stored on, or moved across, the pier. These discharges, leaks, and spills could result in contamination of parts of the pier with chemical compounds of concern to the marine environment.
To assess this potential further, in February 1993 the NSF analyzed eleven ice samples taken from the ice pier at McMurdo Station. The samples were collected in the following manner. The central portion of the pier was first divided into 21 equal area quadrats, each approximately 100′ × 100′. The center of each plot was then identified, and four additional sample locations were identified in an equidistant “X” pattern from the center sample point. One sample was collected from each of the five points in each plot, and the five sub-samples were then composited into a single sample for each plot. Composited samples were analyzed for alternating plots throughout the grid pattern,
Subsequently, the NSF issued a directive that at all locations where fuel drums for building heating systems, or fuel transfer stations are found, such locations shall be underlain with secondary containment methods, to facilitate capture of leaks or spills. Secondary containment methods include large metal pans or impermeable liners placed beneath the potential contaminant source. Drip pans were installed under the fuel drums at the warming hut on the ice pier.
In February 1994, the approximately 800′ by 300′ surface of the ice pier was again divided into 21 quadrats for further examination of locations of contamination. NSF personnel examined the entire surface of the pier, after the non-slip gravel surface had been removed, and any points on the pier showing signs of contamination from leaks or spills were marked and noted. Five samples were taken from each of the 21 quadrats; the samples were composited and analyzed for total petroleum hydrocarbons (TPH). TPH analysis, which identifies a narrower range of analytes than the broader TEH analytical procedure, was used because previous analyses demonstrated that only analytes from the narrower range are present. TPH has a detection limit of 10 mg/kg; for all samples except one, TPH was undetected. That single sample had a TPH concentration of 50 mg/kg. Analysis of that single sample was unable to specifically determine the chemical composition of the contaminants; vehicle engine fuel or hydraulic fluids were identified as the most likely possibilities.
The NSF has a spill prevention, control, and countermeasures (SPCC) plan for all of the stations and bases under NSF jurisdiction in Antarctica. The plan, revised in September 1994, and currently being updated, includes a section addressing fuel storage and transfer systems for the ice pier at McMurdo Station. The SPCC plan identifies the annual unloading of petroleum products from the supply tanker as having the greatest potential for accidental discharge of contaminants. Previously, four-inch diameter hoses made up in 50-foot lengths were used to unload fuel from the tanker to the tank farms on the mainland at McMurdo Station. However, to reduce the risk of a potential fuel spill during the tanker unloading operation, new six-inch diameter hoses made up in 660-foot lengths replaced the older hoses in 1993. The new hoses significantly reduced the number of hose connections (and potential leaks) on the ice pier. For further protection, the connecting point from the tanker to the transfer hose was underlain by large drip pans.
In addition, the SPCC plan identifies the annual unloading of drummed lubricants, solvents, and hazardous materials from the cargo freighter, and the subsequent loading of the freighter with materials destined to be returned to New Zealand or the United States, as potential sources of accidental discharge or spills. As a result, to reduce the potential for discharges, the plan requires all materials received from, or loaded onto, the cargo vessel to be containerized in double-walled military vans.
Today EPA is proposing to issue a new general permit to NSF and its agents for the ocean dumping of man-made ice piers from the NSF research station at McMurdo Sound, Antarctica, subject to specific conditions. Agents of the NSF are included in the permit because transportation for the purpose of dumping the pier may be by vessels
The proposed general permit establishes several specific conditions that must be met during the life of, and prior to the ocean dumping of, the ice pier. In addition, it requires the NSF to report by June 30 of every year to the Director of the Oceans and Coastal Protection Division, in EPA's Office of Water, on any spills, discharges, or clean-up procedures on the ice pier, and on any ocean dumping of ice piers from McMurdo Station conducted under this general permit.
With the institution of new protective measures, such as longer length hoses for unloading petroleum products from the annual supply tanker, and new precautions taken in the handling and return to bases outside Antarctica of used or contaminated chemicals, solvents, and hazardous materials, the chance of a spill or a discharge of these materials is low. There is considerable vehicular traffic on the ice pier during the austral summer season, and the possibility of engine block leaks or discharges from these vehicles cannot be totally avoided. However, the NSF has informed the Agency that vehicles are parked on the pier for only brief periods of time, ranging from minutes to less than an hour, and that no vehicles are ever parked on the pier overnight.
The proposed general permit requires that the NSF have an SPCC plan in place, consistent with the requirements of 40 CFR 112.3, for the ice pier that addresses:
(1) The unloading of petroleum products from supply tankers to the storage tanks at McMurdo Station;
(2) The unloading of drummed chemicals, petroleum products, and material (cargo) from cargo freighters to supply depots at McMurdo Station; and
(3) The loading of materials to freighters destined to be returned to bases outside Antarctica.
The proposed permit requires that the SPCC plan include methods to minimize the accidental release or discharge of any products to the ice pier. In addition, the proposed general permit requires that the following clean-up and reporting procedures must be followed by NSF in the event of a spill or discharge on the pier:
(1) All spills or discharges must be cleaned up within two hours of the spill or discharge, or as soon as possible thereafter.
(2) If a spill or discharge occurs, clean-up procedures must be completed to a level below any visible evidence of the spill or discharge.
(3) As part of normal permit monitoring requirements, an official record of the following information shall be kept by NSF:
(a) The date and time of all spills or discharges, the location of the spill or discharge, the approximate volume of the spill or discharge, clean-up procedures employed, and the results;
(b) The number of wooden poles remaining in the pier at the time of release from McMurdo Station, and their approximate length;
(c) The approximate length of the steel cables remaining in the pier at the time of its release;
(d) Any other substances remaining on the pier at the time of its release; and
(e) The date of detachment of the pier from McMurdo Station, and the geographic coordinates (latitude and longitude) of the point of final release of the pier in McMurdo Sound.
(4) A copy of this record shall be submitted to the Director of the Oceans and Coastal Protection Division, in the EPA's Office of Water, by June 30 of every year as part of the annual reporting requirements.
The conditions specified in the proposed permit are intended to protect the Antarctic environment against release of contaminants from the McMurdo Station ice pier following its ocean dumping and subsequent melting. As noted above, section 104(c) of the MPRSA, 33 U.S.C. 1414(c), and EPA regulations at 40 CFR 220.3(a) authorize the issuance of general permits for the dumping of materials which have minimal adverse environmental impacts.
In light of the testing and analyses described above, and the conditions which are stipulated in the proposed permit for the disposal of ice piers, it is the determination of the Agency that only minimal adverse environmental impacts would result from the dumping of ice piers from the NSF base at McMurdo Station in Antarctica.
Furthermore, the NSF is directed, as a condition of this permit, to utilize a methodology to track any ice piers released from McMurdo Station for a period of one year from the date of release of the pier. Such methodologies may include the use of satellite-tracked pingers placed on the ice pier, or any other methodology that will allow data to be collected on the course, speed, and location of the ice pier. The results of these tracking efforts are to be included in the reports that the NSF is required to submit to the Agency. The period of one year was chosen by the Agency for several reasons: first, batteries for pinger tracking operations beyond a period of one year become considerably heavier and bulkier (and a greater source of pollution to the marine environment when the ice piers eventually melt); and further, one year's measurements should provide substantial evidence concerning the track of ice piers in the dissolution process.
The NSF shall submit tracking reports to the Agency for all releases of ice piers from McMurdo Station under this permit. If tracking results demonstrate that all such ice piers released have generally followed the same path and time duration for the one year following release, the Agency will consider whether further tracking efforts and tracking reports shall be required from the NSF under any future versions of this permit.
Considering that any contaminants remaining on the surface of the piers are expected to be extremely minimal, and further, that the area over which the melting and disintegration of the piers occurs is immense, the potential for damage to the environment from ocean dumping of any McMurdo Station ice piers is minimal. In addition, the possibility of entanglement of large organisms in suspended loops of cable from the melting ice piers has been determined by the Agency to be very minimal; further discussion of this issue can be found in “C. Potential Effects of Ice Pier Disposal,” above.
Further, it should be noted that the issuance of an ocean dumping permit to the NSF does not in any way relieve the NSF of meeting any of its obligations under the Antarctic Protocol, the Antarctic Conservation Act, or the implementing regulations.
The Paperwork Reduction Act, 44 U.S.C. 3501
The Endangered Species Act (ESA) imposes duties on Federal agencies regarding endangered species of fish, wildlife, or plants and habitat of such species that have been designated as critical. Section 7(a)(2) of the ESA and its implementing regulations (50 CFR part 402) require EPA to ensure, in consultation with the Secretary of Interior or Commerce, that any action authorized, funded, or carried out by EPA in the United States or upon the high seas, is not likely to jeopardize the continued existence of any endangered or threatened species, or adversely affect their critical habitat.
In compliance with section 7 of the ESA, an endangered species list for the affected area of ocean dumping of ice piers from the NSF facility at McMurdo Station was requested by EPA and received from both the Fish and Wildlife Service (F&WS) of the Department of the Interior and the National Marine Fisheries Service (NMFS) of the Department of Commerce. No endangered, threatened, or candidate species are reported to potentially occur in the affected area.
EPA has discussed this matter with both the F&WS and the NMFS pursuant to section 7 of the ESA, and the agencies have agreed that the ocean dumping of ice piers by the NSF or its agents from McMurdo Station in Antarctica will have no effect on endangered or threatened species. EPA will consider any comments offered by either the F&WS or the NMFS on this issue before promulgating a final general permit on the ocean dumping of ice piers.
The United States National Science Foundation and its agents are hereby granted a general permit under sections 102(a) and 104(c) of the Marine Protection, Research, and Sanctuaries Act, 33 U.S.C. 1412(a) and 1414(c), to transport ice piers from the McMurdo Sound, Antarctica, research station for the purpose of ocean dumping, subject to the following conditions:
(a) The NSF shall have a spill prevention, control, and countermeasures (SPCC) plan in place, consistent with the requirements of 40 CFR 112.3, for the McMurdo Station ice pier. The SPCC plan shall address procedures for loading and unloading the following materials, and shall include methods to minimize the accidental release or discharge of any of the following materials to the ice pier:
(1) Petroleum products unloaded from supply tankers to the storage tanks at McMurdo Station;
(2) Drummed chemicals, petroleum products, and materiel unloaded from cargo freighters to supply depots at McMurdo Station; and
(3) Materials loaded to freighters destined to be returned to bases outside Antarctica.
(b) If a spill or discharge occurs on an ice pier, clean-up procedures must be completed by NSF or its contractors to a level below any visible evidence of the spill or discharge. All spills or discharges on an ice pier must be cleaned up within two hours of the spill or discharge, or as soon as possible thereafter.
(c) As part of normal monitoring requirements, a record of the following information shall be kept by NSF:
(1) The date and time of all spills or discharges, the location of the spill or discharge, a description of the material that was spilled or discharged, the approximate volume of the spill or discharge, clean-up procedures employed, and the results;
(2) The number of wooden poles remaining in the pier at the time of its release from McMurdo Station, and their approximate length;
(3) The approximate length of the steel cables remaining in the pier at the time of its release from McMurdo Station;
(4) Any other substances remaining on the pier at the time of its release from McMurdo Station; and
(5) The date of detachment of the pier from McMurdo Station, and the geographic coordinates (latitude and longitude) of the point of final release of the pier in McMurdo Sound or the Antarctic Sea.
(d) The non-embedded ends of all wooden utility poles and bollards will be cut off from the ice pier prior to disposal, and shall not be disposed of in the ocean.
(e) Prior to the ocean dumping of any ice piers, the following actions shall be taken by NSF:
(1) Other than the matter physically embedded in the ice pier (
(2) The gravel non-slip surface of the pier shall be removed to the maximum extent possible, and stored on the mainland for subsequent use.
(3) A methodology to track any ice piers released from McMurdo Station shall be established and utilized for a period of one year from the date of release of the ice pier. The results of these tracking efforts are to be included in the annual reports that the NSF is required to submit to EPA.
(f) The NSF shall submit a report by June 30 of every year to the Director of the Oceans and Coastal Protection Division, in EPA's Office of Water, on (1) Any spills, discharges, or clean-up procedures on the ice pier at McMurdo Station, (2) any ocean dumping of ice piers from McMurdo Station, and (3) any tracking efforts of ice piers released from McMurdo Station under this general permit for the year preceding the date of the annual report.
(g) For the purpose of this permit, the term “ice pier(s)” means those man-made ice structures containing embedded steel cable, and any remaining gravel frozen into the surface of the pier, that are constructed at McMurdo Station, Antarctica, for the purpose of off-loading the annual provision of materiel and supplies for the base at McMurdo Station and other U.S. Antarctic bases, and for loading the previous year's accumulation of wastes, which are returned to the United States.
(h) This permit shall be valid until [add date—seven years from the date of issuance].
Federal Housing Finance Board.
Notice.
Notice is hereby given that the Federal Housing Finance Board (Finance Board) has adjusted the cap on average total assets that defines a “Community Financial Institution” (CFI) based on the annual percentage increase in the Consumer Price Index for all urban consumers (CPI-U), as published by the Department of Labor (DOL), pursuant to the requirements of section 2(13)(B) of the Federal Home Loan Bank Act (Bank Act) requirements of the Finance Board's regulations. Notice is hereby given that the Finance Board has made similar adjustments to the limits on annual compensation for the Federal Home Loan Bank (Bank) directors, based on the CPI-U, as published by the DOL, pursuant to the requirements of section 7(i)(2)(B) of the Bank Act and requirements of the Finance Board's regulations. In addition, notice is hereby given that the Finance Board has made similar adjustments to the maximum dollar limits on certain allocations by a Bank of its annual required Affordable Housing Program (AHP) contributions, pursuant to the requirements of the Finance Board's regulations.
Scott L. Smith, Associate Director, Economic and Financial Analysis, Office of Supervision, (202) 408-2991, or Kirsten L. Landeryou, Economic and Financial Analysis, Office of Supervision, (202) 408-2552. Staff also can be reached by regular mail at the Federal Housing Finance Board, 1777 F Street, NW., Washington, DC 20006.
Section 2(13)(B) of the Bank Act (12 U.S.C. 1422(13)(B)), and § 900.1 of the Finance Board's regulations (12 CFR 900.1) require the Finance Board, beginning in 2001, to adjust annually the cap on average total assets (CFI Asset Cap) set forth in section 2(13)(A)(ii) of the Bank Act (12 U.S.C. 1422(13)(A)(ii)) and § 900.1 of the Finance Board's regulations that defines a CFI, based on the annual percentage increase, if any, in the CP-U, as published by the DOL.
Section 7(i)(2)(B) of the Bank Act (12 U.S.C. 1427(i)(2)(B)) and § 918.3(a)(1) of the Finance Board's regulations (12 CFR 918.3(a)(1)), require the Finance Board, beginning January 1, 2001, to make similar annual adjustments to the annual compensation limits set forth in section 7(i)(2)(A) of the Bank Act (12 U.S.C. 1427(i)(2)(A)) and § 918.3(a)(1), for members of the boards of directors of the Banks. Section 951.3(a)(1)(iii) of the Finance Board's regulations (12 CFR 951.3(a)(1)(iii)) requires the Finance Board, beginning in 2003, to make similar annual adjustments to the maximum dollar limits set forth in § 951.3(a)(1)(i), on the amounts that a Bank may set aside annually from its annual required AHP contributions for the current year and the subsequent year, towards homeownership set-aside programs. In addition, § 951.3(a)(1)(iii) of the Finance Board's regulations (12 CFR 951.3(a)(1)(iii)) requires the Finance Board, beginning in 2003, to make similar annual adjustments to the maximum dollar limits set forth in § 951.3(a)(1)(ii), on the amounts that a Bank may set aside annually from its annual required AHP contributions for the current year and the subsequent year, towards an additional first-time homebuyer set-aside program. Section 951.3(a)(2) of the Finance Board's regulations (12 CFR 951.3(a)(2)), requires the Finance Board, beginning in 2002, to make a similar annual adjustment to the maximum dollar limit set forth in § 951.3(a)(2), on the amount that a Bank may allocate from its annual required AHP contribution for the subsequent year to the current year's competitive application program.
For purposes of the CFI Asset Cap, the Finance Board is required to publish notice by
The annual adjustments of the existing CFI Asset Cap, annual Bank director compensation limits and maximum dollar limits on Bank allocations from annual required AHP contributions, effective January 1 of a particular calendar year, reflect the percentage by which the CP-U published for November of the preceding calendar year exceeds the CP-U published for November of the year before the preceding calendar year (if at all). For example, the adjustments of the limits effective January 1, 2003 are based on the percentage increase in the CP-U from November 2001 to November 2002. The CFI Asset Cap is rounded to the nearest million dollars, the annual compensation limits are rounded to the nearest dollar and the limits on allocations from AHP contributions are rounded to the nearest $100,000.
The Finance Board has determined that it is appropriate to use data from November rather than waiting for the December data to become available so that the Banks can be notified of the adjusted CFI Asset Cap, annual Bank director compensation limits and AHP maximum dollar allocation limits as close to the January 1 effective date as possible. Other Federal agencies do not rely on December data, which is published in mid-January, when calculating annual inflation adjustments and, as a result, are able to announce their adjustments prior to the effective date of January 1.
The DOL encourages the use of CPI-U data that has not been seasonally adjusted in “escalation agreements” because seasonal factors are updated annually and seasonally adjusted data are subject to revision for up to five years following the original release. Unadjusted data are not routinely subject to revision, and previously published unadjusted data are only corrected when significant calculation errors are discovered. Accordingly, the Finance Board is using data that has not been seasonally adjusted to calculate the new CFI Asset Cap, annual Bank director compensation limits and AHP maximum dollar allocation limits.
The unadjusted CPI-U increased 2.2 percent between November of 2001 and November of 2002. Based on this data, pursuant to the requirements of § 900.1, the Finance Board has adjusted the CFI Asset Cap from the 2002 limit of $527 million to $538 million, effective January 1, 2003. The Finance Board arrived at the adjusted limit of $538 million by rounding to the nearest million.
Pursuant to § 918.3(a)(1), based on the 2.2 percent increase in the unadjusted CPI-U, the Finance Board has adjusted the annual compensation limits for the members of the boards of directors of the Banks as follows, effective January 1, 2003: for a Chairperson—$26,921; for a Vice-Chairperson—$21,537; for any other member of a Bank's board of directors—$16,152. The Finance Board arrived at the adjusted annual compensation limits by rounding to the nearest dollar.
Pursuant to § 951.3(a)(1)(iii), based on the 2.2 percent increase in the unadjusted CPI-U, the Finance Board has adjusted the maximum dollar limits
Pursuant to § 951.3(a)(1)(iii), the Finance Board also applied the 2.2 percent increase in the unadjusted CPI-U to the 2002 maximum dollar limit on the amount that a Bank may set aside from its annual required AHP contributions, for the current year and the subsequent year, towards an additional first-time homebuyer set-aside program. Rounding the resulting number to the nearest $100,000, the maximum dollar limit remains at the 2002 level of $1.5 million, effective January 1, 2003. In addition, pursuant to § 951.3(a)(2), based on the 2.2 percent increase in the unadjusted CPI-U, the Finance Board has adjusted the maximum dollar limit on the amount that a Bank may allocate from its annual required AHP contribution for the subsequent year to the current year's competitive application program, from the 2002 limit of $3.0 million to $3.1 million, effective January 1, 2003. The Finance Board arrived at the adjusted limit of $3.1 million by rounding to the nearest $100,000.
Board of Governors of the Federal Reserve System.
11 a.m., Monday, January 13, 2003.
Marriner S. Eccles Federal Reserve Board Building, 20th and C Streets, NW., Washington, DC 20551.
Closed.
1. Personnel actions (appointments, promotions, assignments, reassignments, and salary actions) involving individual Federal Reserve System employees.
2. Any items carried forward from a previously announced meeting.
Michelle A. Smith, Assistant to the Board; (202) 452-2955.
You may call (202) 452-3206 beginning at approximately 5 p.m. two business days before the meeting for a recorded announcement of bank and bank holding company applications scheduled for the meeting; or you may contact the Board's Web site at
Office of Government Ethics (OGE).
Notice.
After this first round notice and public comment period, OGE plans to submit the Standard Form (SF) 278 for extension of approval (up to three years) by Office of Management and Budget
(OMB) under the Paperwork Reduction Act. The SF 278 is henceforth to be accompanied by agency notification to filers of the adjustment of the gifts/travel reimbursements reporting thresholds and, when final, the revisions to the Privacy Act Statement. Both revisions will not be incorporated into the form itself at this time, since OGE plans a more thorough revision of the form in the next year or two.
Comments on this proposed extension should be received by March 24, 2003.
Comments should be sent to Mary T. Donovan, Office of Administration and Information Management, Office of Government Ethics, Suite 500, 1201 New York Avenue, NW., Washington, DC 20005-3917. Comments may also be sent electronically to OGE's Internet E-mail address at
Ms. Donovan at the Office of Government Ethics; telephone: 202-208-8000, ext. 1185; FAX: 202-208-8038. A copy of a blank SF 278 may be obtained, without charge, by contacting Ms. Donovan. Also, a copy of a blank SF 278 is available through the Forms, Publications & Other Ethics Documents section of OGE's Web site at
The Office of Government Ethics is planning to submit, after this notice and comment period, the unmodified Standard Form 278 Executive Branch Personnel Public Financial Disclosure Report (OMB control number 3209-0001) for extension of approval for (up to) three years by OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35). The current paperwork approval for the SF 278 is scheduled to expire at the end of March 2003. Since, for now, no modification to this standard form is being proposed, OGE will not seek any General Services Administration (GSA) standard forms clearance for this extension.
The Office of Government Ethics, as the supervising ethics office for the executive branch of the Federal Government under the Ethics in Government Act (the Ethics Act), is the sponsoring agency for the Standard Form 278. In accordance with section 102 of the Ethics Act, 5 U.S.C. app. section 102, and OGE's implementing financial disclosure regulations at 5 CFR part 2634, the SF 278 collects pertinent financial information from certain officers and high-level employees in the executive branch for conflicts of interest review and public disclosure. The financial information collected under the statute and regulations relate to: assets and income; transactions; gifts, reimbursements and travel expenses; liabilities; agreements or arrangements; outside positions; and compensation over $5,000 paid by a source—all subject to various reporting thresholds and exclusions.
The Office of Government Ethics notes two changes (discussed below) affecting the content of SF 278s. The first change concerns the recent adjustments in the gifts/reimbursements reporting thresholds. The second change involves the routine use language contained in the Privacy Act Statement of the form that will be revised in 2003. For now, OGE is proposing no revisions to the SF 278, but rather asks that executive branch departments and agencies inform SF 278 filers, through cover memorandum or otherwise, of these two changes when the existing
Effective January 1, 2002, GSA raised “minimal value” under the Foreign Gifts and Decorations Act, 5 U.S.C. 7342, to $285 or less for the three-year period 2002-2004. See 67 FR 56495-56496 (September 4, 2002). As a result, OGE has advised agencies and revised its financial disclosure regulations to reflect the increase in the thresholds for SF 278 reporting of gifts and travel reimbursements received from any one source to “more than $285” for the aggregation level for reporting and to “$114 or less” for the de minimis aggregation exception threshold. These Ethics Act reporting thresholds are tied to any adjustment in foreign gifts minimal value over $250 (see 5 U.S.C. app. section 102(a)(2)(A) & (B)). See OGE's September 27, 2002 memorandum to designated agency ethics officials (DO-02-021) and 67 FR 61761-61762 (October 2, 2002). Both the GSA and OGE rulemakings and OGE's memorandum are posted on the OGE Web site.
In addition, OGE is in the process of updating the OGE/GOVT-1 system of records notice (covering SF 278 Public Financial Disclosure Reports and other name-retrieved ethics program records). As a result, the Privacy Act Statement, which includes paraphrases of the routine uses on page 11 of the instructions on the SF 278, will be affected. A summary of the anticipated changes relevant to that SF 278 statement has been prepared for inclusion with the paperwork clearance submission to OMB. Once the new language in OGE's forthcoming Privacy Act notice is finalized (anticipated completion date is spring 2003), OGE will advise departments and agencies of the Privacy Act Statement changes (with notice to OMB at that time) without further paperwork clearance.
During the last session of Congress, a bill (S. 1811) was introduced to amend the Ethics in Government Act of 1978 (5 U.S.C. app.) to streamline the financial disclosure process for executive branch employees. The bill was not enacted, but may be introduced again in the current session of Congress. If the bill is enacted, the public financial disclosure requirements will change, and the SF 278 will have to be revised accordingly. At that time, OGE would seek paperwork renewal from OMB and standard form clearance from GSA for the revised SF 278.
For now, OGE will continue to make the unmodified SF 278 available to departments and agencies and their reporting employees through the Forms, Publications & Other Ethics Documents section of OGE's Web site. This allows employees two different fillable options for preparing their report on a computer (in addition to a downloadable blank form), although a printout and manual signature of the form are still required unless specifically approved otherwise by OGE.
The SF 278 is completed by candidates, nominees, new entrants, incumbents and terminees of certain high-level positions in the executive branch of the Federal Government. The Office of Government Ethics, along with the agencies concerned, conducts the review of the SF 278 reports of Presidential nominees subject to Senate confirmation. This group of nominee reports forms, together with those of terminees from such positions who may file after leaving the Government, forms the basis for OGE's paperwork estimates in this notice.
In light of OGE's experience over the past three years (1999-2001), the estimate of the total number, on average, of such nominees' SF 278 forms expected to be filed annually at OGE by members of the public (as opposed to current Federal employees) is 449. (The 2002 figures are not yet available.) This estimated number is based primarily on the forms processed at OGE by private citizen Presidential nominees to positions subject to Senate confirmation (and their private representatives—lawyers, accountants, brokers and bankers) and those who file termination reports from such positions after their Government service ends, as well as Presidential and Vice Presidential candidates who are private citizens. The OGE estimate covers the next three years, 2003-2005 including a significant increase in reports anticipated with the fall 2004 Presidential election and following transition. The prior paperwork burden estimate was 260 forms per year. The estimated average amount of time to complete the report form, including review of the instructions and gathering of needed information, remains the same at three hours. Thus, the overall estimated annual public burden for the SF 278 for the private citizen/representative nominee and terminee report forms processed at the Office of Government Ethics is being adjusted to 1,347 (from 780) hours.
Moreover, OGE estimates, based on the agency ethics program questionnaire responses for 1999-2001 (the 2002 figures are not available), that some 21,200 SF 278 report forms are filed annually at departments and agencies throughout the executive branch. Most of those executive branch filers are current Federal employees at the time they file, but certain candidates for President and Vice President, nominees, new entrants and terminees complete the form either before or after their Government service. The percentage of private citizen filers branchwide is estimated at no more than 5% to 10%, or some 1,060 to 2,120 per year at most.
Public comment is invited on each aspect of the SF 278 Public Financial Disclosure Report as set forth in this notice, including specifically views on the need for and practical utility of this collection of information, the accuracy of OGE's burden estimate, the potential for enhancement of quality, utility and clarity of the information collected, and the minimization of burden (including the use of information technology).
Any comments received in response to this notice will be summarized for, and may be included with, OGE's request for extension of OMB paperwork approval for this information collection. Comments will also become a matter of public record.
Agency for Healthcare Research and Quality, HHS.
Notice.
This notice announces the intention of the Agency for Healthcare Research and Quality (AHRQ) to request the Office of Management and Budget (OMB) to allow the proposed information collection project: “Needs Assessment of Primary Care Practice-Based Research Networks (PBRNs)”. In accordance with the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)), AHRQ invites the public to comment on this proposed information collection.
Comments on this notice must be received by March 10, 2003.
Written comments should be submitted to: Cynthia D. McMichael, Reports Clearance Officer, AHRQ, 2101
Cynthia D. McMichael, AHRQ Reports Clearance Officer, (301) 594-3132.
The project is being conducted in response to an AHRQ RFP entitled “Resource Center for Primary Care Practice-Based Research Networks (PBRNs)” (issued under Contract 290-02-0008). The Healthcare Research and Quality Act of 1999, amending section 911(b) of Title IX of the Public Health Service Act (42 U.S.C. 299
In order to assist AHRQ in meeting this goal, AHRQ created an RFP that specifically requires a resource center to “access the specific needs, if any, of each PBRN awarded (by AHRQ)” by determining “the stage of development of networks funded under the PBRN initiatives [AHRQ RFA-HS-02-003] and the specific resource needs of each network.”
The PBRNs are groups of primary care practices working together with academic researchers to address community-based health care research questions and to translate research findings into practice to improve health care. AHRQ funded 36 PBRNs in September, 2002, as well as a Resource Center intended to provide technical assistance and support to the PMRNs in their efforts to design and implement research projects. It is expected that an additional 24 PBRNs will be funded in 2003. In the proposed activities, the PBRN Resource Center will collect data directly from each PBRN and their affiliated practices. The collection is a needs assessment of each of the AHRQ funded PBRNs. The collection will identify how the Resource Center can best support these networks through the development and use of information technology, and by linking the PBRNs with appropriate technical experts.
The in-depth needs assessment of each PBRN will use written and web surveys and telephone interviews. Each needs assessment will ascertain the current capabilities of an individual PBRN in several respects, including:
• The ability to design and implement appropriately rigorous and complex research plans, including their access to key resources such as validated instruments and competence conducting advanced data analysis;
• The technical capacity for conducting data management tasks such as aggregating research data across networks, developing data files, and warehousing data;
• The ability to use information technology to foster effective communication with affiliated practices and with other research networks;
• The ability to address HHS priorities such as research involving populations of diverse race or ethnicity, socioeconomic status, age, gender and geography as well as preparedness for bioterrorism and other emerging public health threats;
• The ability to engage the network's practicing clinicians and community represenatives in the design, conduct and dissemination of research studies;
• The ability to design and implement data collection instruments in clinical settings;
• The mechanisms for supporting AHRQ's central goal of assuring new research findings are translated into everyday practice; and
• Their capacity for long-term sustainability.
To obtain the necessary information, surveys and interviews will be conducted with PBRN staff and staff members in each network's participating practices.
Due to the relatively small number of organizations in the respondent universe of AHRQ funded PBRNs, and the expected diversity of needs, we will survey all of the AHRQ funded PBRNs (including those to be funded in 2003).
The method of data collection for the needs assessments consists of web-based and paper-based surveys and telephone interviews. We expect to involve multiple individuals from each PBRN in the data collection, including the PBRN administrator, information technology personnel, and the PBRN's lead clinician as well as individuals with similar roles at the affiliated practice level.
All individuals or networks unable to complete the survey via the Web will be sent a paper-based survey to complete and return by mail. The Resource Center will data enter any surveys completed by hand so that these responses can be included in the analyses. Non-respondents will receive a telephone reminder and, if necessary, will be sent an additional survey.
The total cost to the government for activities directly related to this data collection is $432,451.00.
In accordance with the above cited legislation, comments on the AHRQ information collection proposal are requested with regard to any of the following: (a) Whether the proposed collection of information is necessary for the proper performance of functions of AHRQ, including whether the information will have practical utility; (b) the accuracy of AHRQ's estimate of the burden (including hours and costs) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and included in the request for OMB approval of the proposed information collection. All comments will become a matter of public record.
In accordance with section 10(d) of the Federal Advisory Committee Act as amended (5 U.S.C., Appendix 2), the Agency for Healthcare Research and Quality (AHRQ) announces meetings of scientific peer review groups. The subcommittees listed below are part of the Agency's Health Services Research Initial Review Group Committee.
The subcommittee meetings will be closed to the public in accordance with the Federal Advisory Committee Act, section 10(d) of 5 U.S.C., Appendix 2 and 5 U.S.C. 552b(c)(6). Grant applications are to be reviewed and discussed at these meetings. These discussions are likely to involve information concerning individuals associated with the applications, including assessments of their personal qualifications to conduct their proposed projects. This information is exempt from mandatory disclosure under the above-cited statutes.
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Agenda items for these meetings are subject to change as priorities dictate.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 498-1210. Send written comments to CDC, Desk Officer, Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503. Written comments should be received within 30 days of this notice.
The NBDPS is a case-control study of major birth defects that includes cases identified from existing birth defect surveillance registries in ten states (including metropolitan Atlanta). Control infants are randomly selected from birth certificates or birth hospital records. Mothers of case and control infants are interviewed using a computer-assisted telephone interview. Parents are asked to collect cheek cells
This request is submitted to obtain approval for current NBDPS activities for three more years with one change indicated below:
The CDC NBDPS currently remunerates participants for the biologic sample collection portion of the study. The cheek cell kits include $20.00 as an incentive to complete them and send them back. Overall, only 50% of participants completing the interview send in a completed cheek cell kit. While some subjects have stated that they do not wish to provide buccal samples due to their concerns about genetic testing, many subjects state that it is time consuming and difficult to remember to complete the kit and mail it back. An additional $20.00 incentive will be added that is linked to the return of the cheek cell kits. It is appropriate to have a higher level of compensation for those who spend the additional time to complete the cheek cell collection and return the kit than for those who only receive the kit and invest no time in further participation. This would make a total of $60.00 compensation ($20.00 for the completing of the interview, $20.00 for receiving the cheek cell kit and $20.00 for returning the kit) for subjects who choose to complete the entire study including the return of the cheek cell samples for herself and the baby or for just herself if the baby is deceased. While samples are requested from the father, the third incentive would not be dependent on the cooperation of the father since this may pose a hardship to those mothers who are not in regular contact with the father. Given the time and inconvenience required for the entire study (interview and cheek cell), a total of $60.00 is an appropriate level of compensation. The additional $20.00 money order is expected to increase the number of kits that are completed and returned and will be included in the thank you letter that each participant receives upon completion of the study. The estimated annualized burden is 1600 hours.
The Centers for Disease Control and Prevention (CDC) publishes a list of information collection requests under review by the Office of Management and Budget (OMB) in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these requests, call the CDC Reports Clearance Officer at (404) 498-1210. Send written comments to CDC, Desk Officer, Human Resources and Housing Branch, New Executive Office Building, Room 10235, Washington, DC 20503. Written comments should be received within 30 days of this notice.
The data collected in this surveillance provides important information on the public health impact of vibriosis in the Gulf Coast States. FDA, which has regulatory responsibility for the safety of seafood, has requested these data to identify interventions that may reduce the burden of seafoodborne vibriosis. The data are also of interest to public and industry groups such as the Interstate Shellfish Sanitation Conference and the National Fisheries Institute.
The annual burden hours are estimated to be 50.
This notice amends Part R of the Statement of Organization Functions and Delegations of Authority of the Department of Health and Human Services (DHHS), Health Resources and Services Administration (HRSA) (60 FR 56605 as amended November 6, 1995; as last amended at 67 FR 46519, July 15, 2002).
This notice establishes a centralized Division of Grants Management Operations (DGMO) within the Office of Management and Program Support (OMPS), removes the grants management functions in the Bureau of Primary Health Care, the Bureau of Health Professions, the Maternal Child Health Bureau and the HIV/AIDS Bureaus and moves them to a newly established Division of Grants Management Operations within the OMPS; establishes a centralized Division of Independent Review within the OMPS; abolishes the Office of Peer Review in the Bureau of Health Professions; abolishes the Division of Grants and Procurement Management within the OMPS; establishes a Division of Procurement Management within OMPS; moves the HRSA Small and Disadvantaged Business function from the Office of Equal Opportunity and Civil Rights to the newly established Division of Procurement Management within OMPS; moves the Office of International Health Affairs to the Office of the Administrator; establishes a Division of Border Health within the Office of International Health Affairs; establishes the Office of Financial Policy and Oversight (OFPO); changes the name of and revises the functional statement of the Office of Field Operations which becomes the Office of Performance Review; revises the functional statement for the Office of Planning and Evaluation; and revises the functional statements for the Bureau of Primary Health Care, the Bureau of Health Professions, the Maternal Child Health Bureau, the HIV/AIDS Bureau, and the Office of Special Programs to reflect the above changes.
The Health Resources and Services Administration (HRSA) directs national health programs which improve the health of the Nation by assuring quality health care to underserved, vulnerable and special-need populations and by promoting appropriate health professions workforce capacity and practice, particularly in primary care and public health.
The Office of the Administrator is headed by the Administrator, Health Resources and Services Administration (OA) who reports directly to the Secretary. The OA includes the following components:
(1) Immediate Office of the Administrator (RA);
(2) Office of Equal Opportunity and Civil Rights (RA2);
(3) Office of Planning and Evaluation (RA5);
(4) Office of Communications (RA6);
(5) Office of Minority Health (RA9);
(6) Office of Legislation (RAE);
(7) Office of Financial Policy and Oversight (RAJ) and;
(8) Office of International Health Affairs (RAH)
1. In the Office of the Administrator establish the Office of Financial Policy and Oversight as follows:
Provides national leadership in the administration and assurance of the financial integrity of HRSA's programs. Provides oversight over all HRSA activities to ensure that HRSA's resources are being properly used and protected. Specifically, OFPO: (1) Serves as the Administrator's principal source for grants policy and financial integrity of HRSA programs; (2) exercises oversight over the Agency's business processes related to assistance programs; and (3) facilitates plans, directs and coordinates the administration of HRSA grant policies.
2. Establish the Division of Financial Integrity in the Office of Financial Policy and Oversight as follows:
(1) Serves as the Agency's focal point for coordinating financial audits of grantees; (2) coordinates the external financial assessment of HRSA grantees and the resolution of any audit findings; (3) conducts the pre- and post-award review of grant applicants' and grantees' accounting systems; (4) conducts ad hoc studies and reviews related to the financial integrity of the HRSA business processes related to assistance programs; (5) serves as the agency's liaison with the Office of Inspector General for issues related to grants; (6) manages and maintains the Agency's hot line for reporting fraudulent fiscal activities; and (7) establishes an assessment model for grantee oversight.
3. Establish the Division of Grants Policy in the Office of Financial Policy and Oversight as follows:
(1) Advises on grants policy issues and assists in the identification and resolution of grants policy issues and problems; (2) analyzes, develops and implements the Agency's grants policy; (3) coordinates the review of Departmental grants policies and ensures that Agency policies and procedures are revised to reflect appropriate changes; (4) conducts review of the limited competition process; (5) monitors and reviews the Agency's program application guidance; (6) serves as the grants liaison for the Agency's electronic systems and processes; (7) coordinates the development of standardized documents and processes for the Agency related to grants; (8) reviews Agency programs for proper interpretation and timely implementation and application of grants management policies; and (9) serves as the coordinator for General Accounting Office and OIG studies on HRSA Programs.
4. Delete the functional statement for the Office of Planning and Evaluation (RA5) in its entirety and replace as follows:
The OPE (1) Serves as the Administrator's primary staff unit for coordinating the agency's strategic, evaluation and research planning processes; (2) oversees communication and maintains liaison between the Administrator, other OPDIVs, higher levels of the Department and other Departments on all matters involving analysis of program policy undertaken in the Agency; (3) prepares policy analysis papers and other planning documents as required in the Administration's strategic planning process; (4) analyzes budgetary data with regard to planning guidelines; (5) collaborates in the development of budgets, performance plans, and performance reports required under the Government Performance and Results Act (GPRA); (6) coordinates activity related to the prevention agenda and
5. Delete in its entirety the functional statement for the Office of International Health Affairs in the OMPS and establish the Office of International Health Affairs (RAH) in the Office of the Administrator as follows:
The Office of International Health Affairs serves as a focal point within the Health Resources and Services Administration (HRSA) for leadership, coordination, and advancement of international health activities relating to health care services for vulnerable and at-risk populations and for training programs for health professionals. The Office carries out the following functions in coordination with the Department and State Department to the extent authorized by laws within the authority of HRSA. Specifically, the OIHA: (1) Provides leadership within HRSA for the support for international health in coordinating policy development with other Departmental agencies; (2) provides technical and other support to HRSA components as they interface with Departmental international health activities; (3) develops working relationships with private sector providers and HRSA grantees to assure mutual areas of cooperation, maximization of expertise and coordination as it relates to international health; (4) advises the HRSA Administrator on strategies to maximize the participation of the Agency and its components in international health programs and activities; (5) works with foundations, private agencies and other Federal, State, and local agencies for the effective development of policies and resources relating to health care for vulnerable populations world-wide; and (6) coordinates international travel and visitor programs within the jurisdiction of HRSA.
6. Establish the Division of Border Health within the Office of International Health Affairs as follows:
Provides leadership and direction to coordinate the Agency's assets in border regions. Specifically, DBH: (1) Assures that the Agency's engagement with regions of the border is strategic, performance based, builds partnerships and alliances, and maximizes utilization of Agency assets; (2) assures agency-wide coordination by establishing border health program policies and procedures including tracking mechanisms; (3) conducts management and evaluation studies to improve the health delivery system on the border; (4) serves as the secretariat and chair for the Agency's Border Health Workgroup; (5) plans, directs, and coordinates the Agency's border health activities; and (6) plans, coordinates and facilitates the agency agreements activities with border health issues.
7. Delete the functional statement for the Office of Equal Opportunity and Civil Rights (RA2) in its entirety and replace as follows:
Directs, coordinates, develops, and administers HRSA's equal opportunity and civil rights activities. Specifically: (1) Provides advice, counsel, and recommendations to HRSA personnel, including regional divisions, on equal opportunity and civil rights and represents HRSA in all equal employment opportunity (EEO) areas; (2) administers affirmative action programs designed to ensure equality of opportunity in employment; (3) manages the Civil Service complaints system and prepares final HRSA decisions; (4) manages the complaints system for Public Health Service (PHS) Commissioned Corps personnel under the provisions of PHS Personnel Instruction 6 and issues proposed dispositions; (5) develops and directs implementation of the requirements of Section 504 of the Rehabilitation Act of 1973, Title VI of the Civil Rights Act of 1964, the Age Discrimination Act of 1975 and the Americans With Disabilities Act, as they apply to recipients of HRSA funds; (6) provides technical assistance and guidance to HRSA on developing education and training programs regarding equal opportunity and civil rights; (7) approves settlement agreements and attorney fees; and (8) applies all applicable laws, guidelines, rules and regulations in accordance with those of the DHHS Office of Equal Employment Opportunity and Civil Rights.
8. Revise the functional statement of the Office of Management and Program Support as follows:
Provides agency-wide leadership, program direction, and coordination to all phases of management. Specifically, OMPS: (1) Provides management expertise and staff advice and support to the Administrator in program and policy formulation and execution; (2) plans, directs, and coordinates the Agency's activities in the areas of administrative management, financial management, human resources management, including labor relations, debt management, procurement management, real and personal property accountability and management, alternative dispute resolution and administrative services; (3) directs and coordinates the development of policy and regulations; (4) oversees the development of annual operating objectives and coordinates HRSA work planning and appraisals; (5) plans, directs and carries out the independent review of grant applications for all of HRSA's programs; (6) plans, directs and carries out the grants officer functions for all of HRSA's programs; (7) directs and coordinates the Agency's organization, functions and delegations of authority programs; and (8) administers the Agency's Executive Secretariat and committee management functions.
9. In the Office of Management and Program Support delete the functional statement for the Division Grants and Procurement Management and establish the Division of Grants Management Operations as follows:
(1) Exercises the sole responsibility within HRSA for all aspects of Grant and Cooperative Agreement receipt and award processes; (2) participates in the planning, development, and implementation of policies and procedures for grants and other federal financial assistance mechanisms; (3) provides assistance and technical consultation to program offices in the development and interpretation of laws, regulations, policies, and guidelines relative to the Agency's grant and cooperative agreement programs; (4) develops standard operating procedures, methods and materials for the administration of the Agency's grants programs; (5) establishes standards and guides for grants management operations; (6) reviews grantee financial status reports and prepares reports and analyses on the grantee's use of funds; (7) provides technical assistance to applicants and grantees on financial and administrative aspects of grant projects; (8) provides data and analyses as necessary for budget planning, hearings, operational planning and management decisions; and (9) participates in the development of program guidance and instructions for grant competitions.
10. Establish the Division of Procurement Management in the Office
Provides leadership in the planning, development, and implementation of policies and procedures for contracts. Specifically, DPM: (1) Exercises the sole responsibility within HRSA for the award and management of contracts; (2) provides advice and consultation of interpretation and application of the Department of Health and Human Services policies and procedures governing contracts management; (3) develops operating procedures and policies for the Agency's contracts programs; (4) establishes standards and guides for and evaluates contracts operations throughout the Agency; (5) coordinates the Agency's positions and actions with respect to the audit of contracts; (6) maintains liaison directly with or through Agency Bureaus or Offices with contractors, other organizations, and various components of the Department; and (7) provides leadership, guidance, and advice on the promotion of the activities in HRSA relating to procurement and material management governed by the Small Business Act of 1958, Executive Order 11625, and other statutes and national policy directives for augmenting the role of private industry, and small and minority businesses as sources of supply to the Government and Government contractors.
11. Establish the Division of Independent Review within the Office of Management and Program Support as follows:
(1) Plans, directs and carries out HRSA's independent review of applications for grants and cooperative agreement funding, and assures that the process is fair, open, and competitive; (2) develops, implements and maintains policies and procedures necessary to carry out the Agency's independent review/peer review processes; (3) provides technical assistance to Independent Reviewers ensuring that reviewers are aware of and comply with the appropriate administrative policies and regulations; (4) provides technical advice and guidance to the Agency regarding the independent review processes; (5) coordinates and assures the development of program policies and rules relating to the HRSA's extramural grant activities; and (6) provides HRSA Offices and Bureaus with the final disposition of all reviewed applications.
12. Change the name of the Office of Field Operations and the names of its Field Offices and revise its functions as follows:
The Mission of the Office of Performance Review (OPR) is to improve access to quality health care and reduce health disparities by effectively reviewing and enhancing the performance of HRSA-supported programs within communities and States.
The OPR is comprised of a Headquarters unit and ten regional operating divisions. The Associate Administrator, who reports directly to the HRSA Administrator, heads the OPR. A Division Director, who reports directly to the Associate Administrator, heads each of the ten OPR regional operating divisions. The OPR is organized as follows:
Serves as the Agency's focal point for reviewing and enhancing the performance of HRSA-supported programs within communities and States. Specifically, OPR: (1) Tracks regional and State trends in public health, health care and health policy, analyzing the impact on HRSA-supported programs; (2) conducts grantee performance reviews, providing programmatic and business management assessments, recommendations, on-site technical assistance and best practice identification; (3) performs State and community strategic partnership reviews, examining the collective effectiveness of HRSA-supported programs and facilitating collaboration in addressing priority health needs; (4) provides recommendations and input on HRSA and selected Departmental program designs, policies and initiatives; and (5) exercises line management authority related to the general administrative and management functions of OPR.
13. Revise the functional statement for the Maternal and Child Health Bureau (RM) as follows:
Provides national leadership and policy direction for the Maternal and Child Health Bureau programs. These programs are designed to improve the health of women of childbearing age, infants, children, adolescents, and their families, of children with special health needs, and of persons with hemophilia. Specifically, MCHB: (1) Coordinates the planning, development, implementation and evaluation of the programs and activities of the Bureau; (2) facilitates effective, collaborative relationships with other health and related programs; (3) establishes a program mission, goals, objectives and policy with broad Administration guidelines; (4) serves as the focal point for managing the Bureau-wide strategic planning operation as it relates to long and short range programmatic goals and objectives for the Bureau; (5) arranges and provides technical assistance to assure that the grantees meet program expectations; (6) serves as principal contact to the Agency, the Department, Office of Management and Budget (OMB), and the White House on matters concerning the health status of America's mothers and children; and (7) provides information and reports on the Bureau's programs to public, health, education
14. In the Maternal and Child Health Bureau Office of Operations and Management delete the grants function and revise the Office of Operations and Management (RM1) as follows:
Plans, directs, coordinates, and evaluates Bureau-wide administrative and management activities; coordinates and monitors program and administrative policy implementation and maintains close liaison with officials of the Agency, and the Office of the Secretary on matters relating to these activities. Specifically, OOM: (1) Serves as the Associate Administrator's and Bureau's principal source for management and administrative advice and assistance; (2) provides or serves as liaison for program support services and; (3) provides leadership on intergovernmental activities of the Bureau which requires central administrative direction or intergovernmental activities of the Bureau, which require central direction of cross-cutting administrative issues affecting program activities; (4) participates in the development of strategic plans, regulatory activities, policy papers, and legislative proposals relating to MCH programs; (5) plans, coordinates and facilitates the Bureau's agency agreements activities; (6) coordinates human resource activities for the Bureau; (7) provides guidance to the Bureau on financial management activities; (8) determines State allocations of MCH Block Grant funds based on formula and current census data; (9) provides organization and management analysis, develops policies and procedures for internal operation, and interprets and implements the Administration's management policies, procedures and systems; (10) coordinates the Bureau's program and administrative delegations of authority activities; (11) provides staff services in the operational planning and program analysis; (12) is responsible for paperwork management functions, including the development and maintenance of bureau manual issuances; (13) provides direction regarding new developments in office management activities; and (14) coordinates Bureau funds and resources for grants, contracts and cooperative agreements.
15. In the Maternal and Child Health Bureau revise the functions of the Division of State and Community Health (RM6) as follows:
In collaboration with MCHB Divisions and Offices, serves as the organizational focus for the administration of responsibilities related to the MCH Block Grant to States Program. Specifically, DSCH: (1) Provides national leadership, direction, coordination, and administrative oversight related to the development and management of the State MCH Block Grant annual reports; (2) based on reviews of State Block grant applications and annual reports submitted by States, develops, plans, manages and monitors a Bureau-wide program of technical assistance and consultation in collaboration with other Bureau Divisions and related health programs; (3) develops and manages a program for the collection, analysis and dissemination of National and State Information and data to various constituencies including the public, States, and Congress about the Block Grant to States Program; (4) coordinates within this Agency and with other Federal programs (particularly Title XIX of the Social Security Act) to extend and improve comprehensive, coordinated services in the Block Grant to States Program; (5) develops, plans, manages and monitors the abstinence only education grant program to the States; (6) develops, plans, manages and monitors the State Systems Development Initiative (SSDI) grant to the States program; (7) participates in activities related to the Special projects of Regional and National Significance (SPRANS) program to facilitate the dissemination of effective knowledge related to State MCH functions; (8) monitors interagency agreements of Federal assignees to State MCH programs; (9) participates in the development of strategic plans, regulatory activities, policy papers, legislative proposals and budget submissions relating to health services for women of childbearing age, infants, children, adolescents, children with special health care needs and their families; (10) responsible for the administration of funds and other resources for grants, contracts, and cooperative agreements; and (11) develops Program Application and Guidance documents.
16. Delete the functional statement for the HIV/AIDS Bureau (RV) in its entirety and replace as follows:
Provides leadership and direction for the HIV/AIDS programs and activities of the Bureau and oversees its relationship with other national health programs. Specifically: (1) Coordinates the formulation of an overall strategy and policy for HRSA AIDS programs; (2) coordinates the internal functions of the Bureau and its relationships with other national health programs; (3) establishes AIDS program objectives, alternatives, and policy positions consistent with broad Administration guidelines; (4) provides direction and leadership for the Agency's AIDS grants and contracts programs; (5) reviews AIDS related program activities to determine their consistency with established policies; (6) represents the Agency and the Department at AIDS related meetings, conferences and task forces; (7) serves as principal contact and advisor to the Department and other parties concerned with matters relating to planning and development of health delivery systems related to HIV/AIDS; (8) develops and administers operating policies and procedures for the Bureau; (9) directs and coordinates Bureau Executive Secretariat activities; (10) directs the Center for Quality; (11) serves in developing and coordinating Telehealth programs and in facilitating electronic dissemination of best practices in health care to health care professionals; (12) provides grantees/States with accurate and timely interpretations of the Bureau's program expectations, requirements, guidances, and Federal legislation; and (13) arranges and provides technical assistance to assure that the grantees meet program expectations.
17. In the HIV/AIDS Bureau delete the functional statement for the Office of Program Support (RV2) in its entirety and replace as follows:
Plans, directs, coordinates and evaluates Bureau-wide administrative and management support activities. Specifically, OPS: (1) Serves as the Bureau's principal source for management and administrative advices and assistance; (2) assists in the development and administration of policies and procedures which govern the review and final recommendation for funding to the Associate Administrator; (3) provides guidance to the Bureau on financial management activities; (4) coordinates personnel activities for the Bureau and advises on the allocation of the Bureau's personnel resources; (5) provides organization and management analysis for the Bureau, develops policies and procedures for internal Bureau requirements, and interprets and implements, the Administration's management policies and procedures; (6) coordinates the
18. In the HIV/AIDS Bureau delete the functional statement for the Office of Science and Epidemiology (RV4) in its entirety and replace as follows:
Serves as the Bureau's principal source on HIV epidemiologic surveillance, program data collection and evaluation, medical and biometric research, and the development of new models of HIV care. The Office coordinates with all HRSA HIV/AIDS programs on the development and implementation of science and epidemiology activities. Specifically: (1) Develops and directs long and short range scientific activities; (2) plans, directs, coordinates and administers the Bureau's annual program evaluation strategy; (3) designs and implements special scientific studies of the impact and outcomes of Bureau health care programs; (4) carries out data collection and analysis activities that document the clients and services of Bureau programs; (5) collects and maintains information on the costs and quality associated with the Bureau's health care programs; (6) directs and manages the implementation and evaluation of priority models of care through the Special Programs of National Significance (Title XXVI, Part F of the PHS Act), including developing Program Application and Guidance documents; (7) formulates and interprets program-related policies; (8) coordinates the documentation of all science, evaluation, and new models of care products with HRSA HIV/AIDS programs; (9) coordinates technical assistance plans and activities with the Division of Training and Technical Assistance and manages program specific technical assistance; (10) plans and develops collaborative efforts in the scientific aspects of Bureau programs with other HHS components, Federal departments, universities, and other scientific organizations; (11) organizes, guides and coordinates the Bureau's scientific planning and development activities in epidemiology, research, and demonstrations; (12) plans and coordinates Bureau participation in scientific organizations, including scientific clearance of presentations and articles for publications; (13) studies and analyzes trends in health care, including availability, access distribution, organization, and financing to determine if the Bureau activities address HIV/AIDS issues in an effective, efficient manner; and (14) coordinates and consults with State and local health departments, other components of the Department, other Federal agencies and/or outside groups on the implementation of Office programs.
19. In the HIV/AIDS Bureau delete the functional statement for the Division of Service Systems (RV5) in its entirety and replace as follows:
Administers Bureau programs and activities and manages funds and other resources related to the provision of coordinated comprehensive HIV health care and support services, including reimbursement for treatment with life-prolonging drugs, for persons with HIV/AIDS. Specifically: (1) Directs and manages the implementation of Parts A and B of Title XXVI of the PHS Act including Emergency Relief Grants (Title I), HIV CARE Grants (Title II), and State AIDS Drug Assistance programs; (2) provides program implementation proposals and plans, and the interpretation of legislation and regulations; (3) monitors HIV services planning and delivery program in States and Cities and provides administrative, strategic, and programmatic direction to grantees to encourage efficient, coordinated treatment of persons with HIV infection; (4) develops Program Application and Guidance documents; (5) develops requirements, guidance and monitors State and territorial programs for medical therapies established to ensure that these treatments are integrated into the system of health care services; (6) promotes the development of State treatment program formularies that include classes of drugs necessary for the proper treatment of people with HIV infection; (7) formulates and interprets program related policies; (8) coordinates technical assistance plans and activities with the Division of Training and Technical Assistance; and (9) coordinates and consults with State and local health departments, other components of the Department, other Federal agencies and/or outside groups on the implementation of Division programs.
20. In the HIV/AIDS Bureau delete the functional statement for the Division of Training and Technical Assistance (RV7) in its entirety and replace as follows:
Coordinates, designs, directs and administers HIV/AIDS-related planning, training, technical assistance and extramural authorities and activities within the Agency. Advises on training and education activities pertaining to the administration of the Bureau's programs. Specifically: (1) Directs and manages the implementation of the AIDS Education and Training Centers (AETC) program of the CARE Act, Title XXVI, Part F of the PHS Act; (2) identifies technical assistance needs and develops technical assistance packages, conducts programs, meetings, and activities to meet such needs; (3) convenes consultation meetings with grantees, providers, representatives of professional and political organizations, and advocacy groups; (4) develops Program Application and Guidance documents for the AETC program; (5) develops and manages mechanisms and resources to address technical assistance needs and support Division/Bureau technical assistance plans and programs; (6) formulates and interprets program-related policies; (7) coordinates and manages the Bureau's HIV-related managed care activities; (8) serves as the Bureau's focal points for advising and coordinating with advisory committees and other external organizations on policies regarding health care delivery and HIV/AIDS prevention, treatment, education and technical assistance; (9) develops outreach activities to assure that target populations are aware of the benefits and availability of HRSA HIV/AIDS programs; (10) provides program implementation proposals and plans, and the interpretation of legislation and regulations; and (11) coordinates and consults with State and local health departments, other components of the Department, other Federal agencies and/or outside groups on the implementation of Division programs.
21. Revise the functional statement for the Bureau of Health Professions (RP) as follows:
Provides national leadership in coordinating, evaluating, and supporting the development and utilization of the Nation's health personnel. Specifically: (1) Assesses the Nation's health personnel supply and requirements and forecasts supply and requirements for future time periods under a variety of health resources utilization assumptions; (2) collects and analyzes data and disseminates
22. In the Bureau of Health Professions abolish the Office of Peer Review (RPG).
23. In the Bureau of Health Professions revise the functions of the Office of Program Support (RP1) as follows:
Plans, directs, coordinates and evaluates Bureau-wide administrative management activities. Maintains close liaison with officials of the Bureau, Agency, the Office of Public Health and Science, and the Office of the Secretary on management and support activities. Specifically: (1) Serves as the Bureau's principal source for management and administrative advice and assistance; (2) provides advice, guidance and coordinates personnel activities for the Bureau; (3) directs and coordinates the allocation of personnel resources; (4) provides organization and management analysis, develops policies and procedures for internal operation and interprets and implements the Bureau's management policies, procedures and systems; (5) develops and coordinates Bureau program and administrative delegations of authority activities; (6) provides guidance to the Bureau on financial management activities; (7) provides Bureau-wide support services such as supply management, equipment utilization, printing, property management, space management, records management and management reports; (8) manages the Bureau's performance management systems; and (9) develops general guidance and criteria related to the Bureau's grant programs.
24. In the Bureau of Health Professions revise the functions of the Division of National Health Service Corps (RPH) as follows:
Provides (1) strategic planning and overall program policy guidance and oversight to the National Health Service Corps (NHSC); (2) initiates national program and policy changes, including regulatory and statutory amendments to ensure NHSC consistency with evolving national health care policy; (3) supports the NHSC National Advisory Council (NAC); (4) provides national NHSC leadership, integration and coordination with HRSA and other Departmental programs serving or impacting the Nation's underserved communities and populations; (5) coordinates NHSC policy on primary and other health care manpower issues, and works with a wide variety of national, regional, State and local constituencies in ensuring their effective implementation; (6) directs and administers the Public Health Service Scholarship Training Program, the NHSC Loan Repayment Program and the NHSC Scholarship Program; (7) develops and implements program plans and policies and operating and evaluation plans and procedures; (8) monitors obligatory service requirements and conditions of deferment for compliance; (9) provides guidance and technical assistance for educational institutions on the NHSC scholarship program; (10) maintains liaison with, and provides assistance to, program-related public and private professional organizations and institutions; (11) coordinates financial aspects of programs with educational institutions; (12) develops program data needs, formats and reporting requirements including collection, collation, analysis and dissemination of data; (13) participates in the development of forward plans, and budgets including recruitment, deferment and service monitoring systems; and (14) develops Program Application and Guidance documents.
25. Revise the functional statement for the Bureau of Primary Health Care (RC) as follows:
Provides national leadership in developing, coordinating, evaluating, and assuring access to comprehensive preventive and primary health care services and improving the health status of the Nations' underserved and vulnerable populations. Specifically, the Bureau: (1) Assesses the Nation's health care needs of underserved populations; (2) assists communities in providing quality health care services, demonstrating new and improved approaches for providing access to healthcare; (3) administers the Consolidated Health Center Program; (4) develops comprehensive integrated systems of care for underserved communities and populations; (5) decreases health disparities through the targeting of resources to those populations at increased risk of negative health outcomes; (6) promotes the integration of primary care services with mental health and dental health services; (7) develops innovative strategies for serving special populations and difficult to serve sub-populations; (8) provides leadership for promoting equity, diversity, and cultural competency in access to health
26. In the Office of Special Programs (RR), delete the functional statement in its entirety and replace as follows:
Provides the overall leadership and direction for the procurement allocation, and transplantation of human organs and bone marrow; programmatic, financial and architectural/engineering support for construction/renovation programs; operation of the Vaccine Injury Compensation Program and the State Planning Grants Program. Specifically: (1) Administers the Organ Procurement and Transplantation Network and the Scientific Registry of Transplant Recipients to assure compliance with Federal regulations and policies; (2) administers the National Marrow Donor Program in matching volunteer unrelated marrow donors for transplants and studying the effectiveness of unrelated marrow donors for transplants and related treatment; (3) develops and maintains a national program of grants and contracts to organ procurement organizations and other entities to increase the availability of various organs to transplant candidates; (4) manages national programs for compliance with uncompensated care and other assurances; (5) directs and administers Section 242 hospital mortgage insurance program (via inter-agency agreement with HUD) and HHS direct and guaranteed construction loan repayment; (6) directs and administers the construction/renovation/equipping of health care and other facilities; (7) directs and administers the National Vaccine Injury Compensation Program; and (8) directs and administers the State Planning Grants Program.
All delegations of authority which were in effect immediately prior to the effective date hereof have been continued in effect in them or their successors pending further redelegation. I hereby ratify and affirm all actions taken by any DHHS official which involved the exercise of these authorities prior to the effective date of this delegation.
This reorganization is effective December 23, 2002.
Judicial Conference of the United States Advisory Committee on Rules of Civil Procedure.
Notice of open meeting.
The Advisory Committee on Rules of Civil Procedure will hold a two-day meeting. The meeting will be open to public observation but not participation.
January 25-26, 2003.
8:30 a.m. to 5 p.m.
The Hermosa Inn, 5532 North Palo Cristi Road, Scottsdale, Arizona.
John K. Rabiej, Chief, Rules Committee Support Office, Administrative Office of the United States Courts, Washington, DC 20544, telephone (202) 502-1820.
The Department of Labor (DOL) has submitted the following public information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). A copy of this ICR, with applicable supporting documentation, may be obtained by calling the Department of Labor. To obtain documentation, contact Darrin King on 202-693-4129 or E-Mail:
Comments should be sent to Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for ETA, Office of Management and Budget, Room 10235, Washington, DC 20503 (202-395-7316), within 30 days from the date of this publication in the
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Section 303(a)(5) of the SSA and section 3304(a)(4) of the FUTA require that all money withdrawn from the UTF be used solely for the payment of unemployment compensation, exclusive of the expenses of administration.
Section 303(a)(6) of the SSA gives the Secretary of Labor the authority to require the reporting of information deemed necessary to assure state compliance with the provisions of the SSA. Accordingly, the Secretary of Labor requires the following reports:
• ETA 2112: UI Financial Transactions Summary, Unemployment Fund.
• ETA 8401: Monthly Analysis of Benefit Payment Account.
• ETA 8405: Monthly Analysis of Clearing Account.
• ETA 8413: Income—Expense Analysis UC Fund, Benefit Payment Account.
• ETA 8414: Income—Expense Analysis UC Fund, Clearing Account.
• ETA 8403: Summary of Financial Transactions—Title IX Fund.
The Department of Labor (DOL) has submitted the following public information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). A copy of this ICR, with applicable supporting documentation, may be obtained by calling the Department of Labor. To obtain documentation, contact Marlene Howze on 202-693-4158 or E-Mail:
Comments should be sent to Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for ETA, Office of Management and Budget, Room 10235, Washington, DC 20503 (202-395-7316), within 30 days from the date of this publication in the
The OMB is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
Occupational Safety and Health Administration (OSHA), Labor.
Establishment of the National Advisory Committee on Ergonomics (NACE); notice of meeting.
The National Advisory Committee on Ergonomics is being established and chartered for a two year term. This committee is part of the Secretary's comprehensive approach for reducing ergonomics-related injuries and illnesses in the workplace. The
The Committee will meet in Washington, DC on Wednesday, January 22, 2003 from 9 a.m. until approximately 5 p.m.
The Committee will meet at the Washington Court Hotel, 525 New Jersey Avenue, NW., Washington, DC 20001; Telephone (202) 628-2100.
Mail comments, views, or statements in response to this notice to MaryAnn Garrahan, Director, Office of Technical Programs and Coordination Activities, OSHA, U.S. Department of Labor, Room N-3655, 200 Constitution Avenue, NW., Washington, DC 20210. Phone: (202) 693-2144; Fax: (202) 693-1644.
Bonnie Friedman, OSHA, Office of Public Affairs, Room N-3647, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; Telephone: (202) 693-1999.
On April 4, 2002, the Secretary of Labor announced her intention to establish a National Advisory Committee on Ergonomics to advise her in the following areas: (1) Various industry or task-specific guidelines; (2) identification of gaps in research applying ergonomic principles to the workplace; (3) current and projected research needs; (4) methods of providing outreach and assistance that will communicate the value of ergonomics to employers and employees; and (5) ways to increase communication among stakeholders on the issue of ergonomics. On May 2, 2002, OSHA published a notice in the
In accordance with the provisions of the Federal Advisory Committee Act (FACA), as amended (5 U.S.C. App. 2) and after consultation with the General Services Administration (GSA), the Secretary of Labor has determined that the establishment of the National Advisory Committee on Ergonomics (NACE) is in the public interest, to advise the Secretary as to the performance of Departmental duties under the Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C. 651
Over two hundred nominations of highly qualified individuals were received in response to the Agency's request for nominations. Ergonomics involves a wide range of complex issues.
For that reason, the Secretary has selected the following individuals who have a wide range of experience concerning the issues to be examined by the Committee. The NACE members are:
These individuals represent a broad range of interests, knowledge, and experience in the field of ergonomics, and the breadth of membership will assure that the Committee will be fairly balanced in terms of the points of view represented and the functions to be performed.
The first meeting of NACE on January 22, 2003, will include an introduction of the Committee members and an overview and brief history of OSHA's activities related to ergonomics. The meeting will also include a discussion of OSHA's efforts to develop ergonomic guidelines, and presentations on enforcement, outreach, and research issues.
Written data, views, or comments for consideration by NACE on the various agenda items listed above may be submitted, preferably with copies, to MaryAnn Garrahan at the address listed above. Submissions received by January 14, 2003 will be provided to the committee members for consideration. Requests to make oral presentations to the Committee may be granted if time permits. Anyone wishing to make an oral presentation to the Committee should notify MaryAnn Garrahan at the address noted above. The request should state the amount of time desired, the capacity in which the person will appear, and a brief outline of the content of the presentation.
Persons with disabilities requiring special accommodations should contact Veneta Chatman (telephone: (202) 693-1912; FAX (202) 693-1635) by January 14, 2003.
A transcript of the meeting will be available for inspection and copying in the OSHA Technical Data Center, Room N-2625 (see address section above) telephone: (202) 693-2350.
This notice was prepared under the direction of John L. Henshaw, Assistant Secretary for Occupational Safety and Health. It is issued under the Federal Advisory Committee Act (FACA) (5 U.S.C. App. 2), GSA's FACA Regulations (41 CFR part 102-3), and DLMS 3 Chapter 1600.
The U.S. Nuclear Regulatory Commission (NRC) has received, by letter dated October 11, 2002, a request from Nuclear Fuel Services, Inc., to amend its NRC Special Nuclear Materials License SNM-124, to authorize (1) processing operations in the Blended Low-Enriched Uranium Preparation Facility (BPF) and (2) minor administrative changes. The staff hereby provides notice of the request and issues a notice of opportunity to request a hearing on the amendment application.
The request is the second of three license amendment requests planned to support operations associated with downblending and conversion of high-enriched uranium materials to low-enriched uranium oxides. NFS is currently manufacturing high-enriched nuclear reactor fuel at its facility in Erwin, Tennessee. NFS is constructing a new complex at the Erwin site to manufacture low-enriched nuclear reactor fuel. NFS is requesting this amendment to authorize operations at the BPF that will prepare low-enriched uranium solutions for use in the new complex. The BPF operations will be conducted within the existing facility because that facility is already authorized to handle high-enriched material. After the high-enriched material is downblended and converted to a low-enriched uranium solution, it will be transferred from the BPF to the new complex.
The October 11, 2002, amendment application contains an Integrated Safety Analysis (ISA) Summary for two of the eleven BPF operations. By letter dated October 14, 2002, NFS provided an ISA Summary addressing the remaining nine operations in the BPF. NFS excluded nine operations from the amendment request because NRC Special Nuclear Materials License SNM-124 already authorizes these operations in another building and NFS is relocating them to the BPF. By letter dated October 10, 2002, NFS provided revisions to their Emergency Plan to incorporate BPF operations. These three submittals comprise the content of the license amendment application. NFS also submitted revisions to their Fundamental Nuclear Material Control (FNMC) Plan by letter dated May 24, 2002, and revisions to their Physical Safeguards Plan by letter dated October 10, 2002. The FNMC Plan and Physical Safeguards Plan are being reviewed independently.
This application will be reviewed by the staff for conformance with 10 CFR parts 20, 70, 73, and 74, using NUREG-1520, “Standard Review Plan for the Review of a License Application for a Fuel Cycle Facility” and other applicable agency regulations and guidance. If NRC approves the request, the approval will be documented in an amendment to NRC Special Nuclear Materials License SNM-124. However, before approving the request, NRC will need to make the findings required by the Atomic Energy Act of 1954, as amended, and NRC regulations. These findings will be documented in a Safety Evaluation Report and either an Environmental Assessment (EA) or an Environmental Impact Statement.
An EA, dated June 28, 2002, was issued to support the first amendment request for this project and may be looked to for additional information.
The following documents are available for public inspection and copying at the NRC Public Document Room, U.S. Nuclear Regulatory Commission Headquarters, Room O-1-F-21, 11555 Rockville Pike, Rockville, MD 20852, or through the ADAMS computer system at
1. Cover Letter and Attachment 1, Proposed Changes to License SNM-124 (ADAMS accession number ML022960038).
2. Attachment III, Non-Proprietary Version of ISA Summary, Part 1 of 2 (ADAMS accession number ML022960069).
3. Attachment III, Non-Proprietary Version of ISA Summary, Part 2 of 2 (ADAMS accession number ML023400228).
1. Cover Letter (ADAMS accession number ML023080301).
2. Attachment II, Non-Proprietary Version of ISA Summary, Part 1 of 2 (ADAMS accession number ML023090025).
4. Attachment II, Non-Proprietary Version of ISA Summary, Part 2 of 2 (ADAMS accession number ML023090170).
Attachments II and IV of the NFS license amendment request dated October 11, 2002, contain proprietary information and are being withheld from the public pursuant to 10 CFR 2.790. Attachment I of the ISA Summary for BPF Processes dated October 14, 2002, contains proprietary information and is being withheld from the public pursuant to 10 CFR 2.790. The Physical Safeguards Plan and the Fundamental Nuclear Material Control Plan are confidential restricted data, as defined in 10 CFR 25.5, and are not publicly available. In addition, the Emergency Plan Revisions are sensitive, homeland security information, and are not publicly available.
NRC also provides notice that this is a proceeding on an application for an amendment of a license falling within the scope of 10 CFR part 2, subpart L, “Informal Hearing Procedures for Adjudications in Materials and Operator Licensing Proceedings.” Pursuant to § 2.1205(a), any person whose interest may be affected by this proceeding may file a request for a hearing. In accordance with § 2.1205(d), a request for hearing must be filed within 30 days of the publication of this notice in the
A. By delivery to the Rulemaking and Adjudications Staff of the Office of the Secretary at One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738, between 7:45 a.m. and 4:15 p.m., Federal workdays; or
B. By mail or telegram addressed to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention: Rulemaking and Adjudications Staff. Because of continuing disruptions in the delivery of mail to United States Government offices, it is requested that requests for hearing be transmitted to the Secretary of the Commission either by means of facsimile transmission to 301-415-1101, or by e-mail to
In accordance with 10 CFR 2.1205(f), each request for a hearing must also be served, by delivering it personally or by mail, to:
A. The applicant, Nuclear Fuel Services, 1205 Banner Hill Road, Erwin, Tennessee 37650-9718. A copy of the request for hearing should also be sent
B. The NRC staff, by delivery to the Office of the General Counsel, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852-2738, between 7:45 a.m. and 4:15 p.m., Federal workdays, or by mail addressed to the Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555. Because of continuing disruptions in the delivery of mail to United States Government offices, it is requested that requests for hearing be transmitted to the Office of the General Counsel either by means of facsimile transmission to 301-415-3725, or by e-mail to
In addition to meeting other applicable requirements of 10 CFR part 2 of the NRC's regulations, a request for a hearing filed by a person other than an applicant must describe in detail:
A. The interest of the requestor in the proceeding;
1. How that interest may be affected by the results of the proceeding, including the reasons why the requestor should be permitted a hearing, with particular reference to the factors set out in § 2.1205(h);
2. The requestor's areas of concern about the licensing activity that is the subject matter of the proceeding; and
3. The circumstances establishing that the request for a hearing is timely in accordance with § 2.1205(d).
For further information, contact Mary T. Adams, Fuel Cycle Facilities Branch, Division of Fuel Cycle Safety and Safeguards, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Mail Stop T-8-A-33, Washington, DC 20555. Telephone (301) 415-7249.
For the U.S. Nuclear Regulatory Commission.
Pursuant to delegation by the Commission, see 37 FR 28,710 (Dec. 29, 1972), and the Commission's regulations, see 10 CFR 2.1201, 2.1207, notice is hereby given that (1) a single member of the Atomic Safety and Licensing Board Panel is designated as Presiding Officer to rule on petitions for leave to intervene and/or requests for hearing; and (2) upon making the requisite findings in accordance with 10 CFR 2.1205(h), the Presiding Officer will conduct an adjudicatory hearing in the following proceeding:
Sequoyah Fuels Corporation, Gore, Oklahoma (Materials License Amendment).
The hearing will be conducted pursuant to 10 CFR part 2, Subpart L, of the Commission's Regulations, “Informal Hearing Procedures for Adjudications in Materials and Operator Licensing Proceedings.” This proceeding concerns requests for hearing submitted (1) on December 14, 2002, by Citizens Action for Safe Energy, Inc.; (2) on December 16, 2002, by the State of Oklahoma; (3) on December 16 by the Cherokee Nation; and (4) by fifteen other Oklahoma residents during December 2002. The requests were filed in response to a notice of consideration of an amendment request from Sequoyah Fuels Corporation to possess byproduct material, as defined in Atomic Energy Act section 11e.(2), at its Gore, Oklahoma facility site. The notice and opportunity for a hearing were published in the
The Presiding Officer in this proceeding is Administrative Judge Alan S. Rosenthal. Pursuant to the provisions of 10 CFR. 2.722, 2.1209, Administrative Judge Thomas D. Murphy has been appointed to assist the Presiding Officer in taking evidence and in preparing a suitable record for review.
All correspondence, documents, and other materials shall be filed with Judges Rosenthal and Murphy in accordance with 10 CFR 2.1203. Their addresses are:
Alan S. Rosenthal, Administrative Judge, Presiding Officer, Atomic Safety and Licensing Board Panel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.
Thomas D. Murphy, Administrative Judge, Special Assistant, Atomic Safety and Licensing Board Panel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.
Nuclear Regulatory Commission.
Weeks of January 6, 13, 20, 27, February 3, 10, 2003.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
Matters To Be Considered:
There are no meetings scheduled for the Week of January 6, 2003.
10 a.m. Discussion of security Issues (Closed-Ex. 1).
2 p.m. Briefing on NRC Lessons Learned: Davis-Besse Reactor Vessel Head (RVH) Degradation (Public Meeting) (Contact: Stacey Rosenberg, 301-415-1733).
This meeting will be webcast live at the Web address—
2 p.m. Briefing on Status of Office of Nuclear Material Safety and Safeguards (NMSS) Programs, Performance, and Plans—Materials Safety (Public Meeting) (Contact: Claudia Seelig, 301-415-7243)
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the Week of January 27, 2003.
10 a.m. Briefing on Status of Office of the Chief Information Officer (OCIO) Programs, Performance, and Plans (Public Meeting) (Contact: Jackie Silber, 301-415-7330)
This meeting will be webcast live at the Web address—
10 a.m. Briefing on Status of Office of Nuclear Reactor Regulation (NRR) Programs, Performance, and Plans (Public Meeting) (Contact: Michael Case, 301-415-1275)
This meeting will be webcast live at the web address—
10 a.m. Briefing on Status of Office of the Chief Financial Officer (OCFO) Programs, Performance, and plans (Public Meeting) (Contact: Lars Solander, 301-415-6080)
This meeting will be webcast live at the Web address—
*The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings call (recording)—(301) 415-1292. Contact person for more information: David Louis Gamberoni (301) 415-1651.
The NRC Commission Meeting Schedule can be found on the Internet at:
This notice is distributed by mail to several hundred subscribers; if you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969). In addition, distribution of this meeting notice over the Internet system is available. If you are interested in receiving this Commission meeting schedule electronically, please send an electronic message to
Pursuant to Public Law 97-415, the U.S. Nuclear Regulatory Commission (the Commission or NRC staff) is publishing this regular biweekly notice. Public Law 97-415 revised section 189 of the Atomic Energy Act of 1954, as amended (the Act), to require the Commission to publish notice of any amendments issued, or proposed to be issued, under a new provision of section 189 of the Act. This provision grants the Commission the authority to issue and make immediately effective any amendment to an operating license upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This biweekly notice includes all notices of amendments issued, or proposed to be issued from, December 13, through December 26, 2002. The last biweekly notice was published on December 24, 2002 (67 FR 78515).
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in 10 CFR 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. The basis for this proposed determination for each amendment request is shown below.
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of the 30-day notice period. However, should circumstances change during the notice period such that failure to act in a timely way would result, for example, in derating or shutdown of the facility, the Commission may issue the license amendment before the expiration of the 30-day notice period, provided that its final determination is that the amendment involves no significant hazards consideration. The final determination will consider all public and State comments received before action is taken. Should the Commission take this action, it will publish in the
Written comments may be submitted by mail to the Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and should cite the publication date and page number of this
By February 6, 2003, the licensee may file a request for a hearing with respect to issuance of the amendment to the subject facility operating license and any person whose interest may be affected by this proceeding and who wishes to participate as a party in the proceeding must file a written request for a hearing and a petition for leave to intervene. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR Part 2. Interested persons should consult a current copy of 10 CFR 2.714,
As required by 10 CFR 2.714, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following factors: (1) The nature of the petitioner's right under the Act to be made a party to the proceeding; (2) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (3) the possible effect of any order which may be entered in the proceeding on the petitioner's interest. The petition should also identify the specific aspect(s) of the subject matter of the proceeding as to which petitioner wishes to intervene. Any person who has filed a petition for leave to intervene or who has been admitted as a party may amend the petition without requesting leave of the Board up to 15 days prior to the first prehearing conference scheduled in the proceeding, but such an amended petition must satisfy the specificity requirements described above.
Not later than 15 days prior to the first prehearing conference scheduled in the proceeding, a petitioner shall file a supplement to the petition to intervene which must include a list of the contentions which are sought to be litigated in the matter. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner shall provide a brief explanation of the bases of the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion. Petitioner must provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to file such a supplement which satisfies these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing, including the opportunity to present evidence and cross-examine witnesses.
If a hearing is requested, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held.
If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment.
If the final determination is that the amendment request involves a significant hazards consideration, any hearing held would take place before the issuance of any amendment.
A request for a hearing or a petition for leave to intervene must be filed with the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff, or may be delivered to the Commission's PDR, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland, by the above date. Because of continuing disruptions in delivery of mail to United States Government offices, it is requested that petitions for leave to intervene and requests for hearing be transmitted to the Secretary of the Commission either by means of facsimile transmission to 301-415-1101 or by e-mail to
Nontimely filings of petitions for leave to intervene, amended petitions, supplemental petitions and/or requests for a hearing will not be entertained absent a determination by the Commission, the presiding officer or the Atomic Safety and Licensing Board that the petition and/or request should be granted based upon a balancing of factors specified in 10 CFR 2.714(a)(1)(i)-(v) and 2.714(d).
For further details with respect to this action, see the application for amendment which is available for public inspection at the Commission's PDR, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management System's (ADAMS) Public Electronic Reading Room on the Internet at the NRC web site,
The changes are based on NRC-approved Technical Specification Task Force (TSTF) Standard Technical Specification Change Traveler, TSTF-413, “Elimination of Requirements for a Post-Accident Sampling System (PASS).” The NRC staff issued a notice of opportunity for comment in the
Criterion 1—The Proposed Change Does Not Involve a Significant Increase in the Probability or Consequences of an Accident Previously Evaluated.
The PASS was originally designed to perform many sampling and analysis functions. These functions were designed and intended to be used in post accident situations and were put into place as a result of the TMI-2 accident. The specific intent of the PASS was to provide a system that has the capability to obtain and analyze samples of plant fluids containing potentially high levels of radioactivity, without exceeding plant personnel radiation exposure limits. Analytical results of these samples would be used largely for verification purposes in aiding the plant staff in assessing the extent of core damage and subsequent offsite radiological dose projections. The system was not intended to and does not serve a function for preventing accidents and its elimination would not affect the probability of accidents previously evaluated.
In the 20 years since the TMI-2 accident and the consequential promulgation of post accident sampling requirements, operating experience has demonstrated that a PASS provides little actual benefit to post accident mitigation. Past experience has indicated that there exists in-plant instrumentation and methodologies available in lieu of a PASS for collecting and assimilating information needed to assess core damage following an accident. Furthermore, the implementation of Severe Accident Management Guidance (SAMG) emphasizes accident management strategies based on in-plant instruments. These strategies provide guidance to the plant staff for mitigation and recovery from a severe accident. Based on current severe accident management strategies and guidelines, it is determined that the PASS provides little benefit to the plant staff in coping with an accident.
The regulatory requirements for the PASS can be eliminated without degrading the plant emergency response. The emergency response, in this sense, refers to the methodologies used in ascertaining the condition of the reactor core, mitigating the consequences of an accident, assessing and projecting offsite releases of radioactivity, and establishing protective action recommendations to be communicated to offsite authorities. The elimination of the PASS will not prevent an accident management strategy that meets the initial intent of the post-TMI-2 accident guidance through the use of the SAMGs, the emergency plan (EP), the emergency operating procedures (EOP), and site survey monitoring that support modification of emergency plan protective action recommendations (PARs).
Therefore, the elimination of PASS requirements from Technical Specifications (TS) (and other elements of the licensing bases) does not involve a significant increase in the consequences of any accident previously evaluated.
Criterion 2—The Proposed Change Does Not Create the Possibility of a New or Different Kind of Accident from any Previously Evaluated.
The elimination of PASS related requirements will not result in any failure mode not previously analyzed. The PASS was intended to allow for verification of the extent of reactor core damage and also to provide an input to offsite dose projection calculations. The PASS is not considered an accident precursor, nor does its existence or elimination have any adverse impact on the pre-accident state of the reactor core or post accident confinement of radioisotopes within the containment building.
Therefore, this change does not create the possibility of a new or different kind of accident from any previously evaluated.
Criterion 3—The Proposed Change Does Not Involve a Significant Reduction in the Margin of Safety.
The elimination of the PASS, in light of existing plant equipment, instrumentation, procedures, and programs that provide effective mitigation of and recovery from reactor accidents, results in a neutral impact to the margin of safety. Methodologies that are not reliant on PASS are designed to provide rapid assessment of current reactor core conditions and the direction of degradation while effectively responding to the event in order to mitigate the consequences of the accident. The use of a PASS is redundant and does not provide quick recognition of core events or rapid response to events in progress. The intent of the requirements established as a result of the TMI-2 accident can be adequately met without reliance on a PASS.
Therefore, this change does not involve a significant reduction in the margin of safety.
The NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
As required by 10 CFR 50.91(a)(1), this analysis is provided to demonstrate that the proposed license amendment does not involve a significant hazard.
Conformance of the proposed amendment to the standards for a determination of no significant hazards, as defined in 10 CFR 50.92, is shown in the following:
(1) Does the proposed license amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
No. Implementation of this amendment would not involve a significant increase in the probability or consequences of an accident previously evaluated. Approval of this amendment will have no effect on accident probabilities or consequences since the changes are purely administrative in nature.
(2) Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
No. Implementation of this amendment will not create the possibility of a new or different kind of accident from any accident previously evaluated. No new accident causal mechanisms are created as a result of NRC approval of this amendment request. No physical changes are being made to the plant. Therefore, the introduction of any new accident scenarios does not exist. The amendment does not impact any plant systems that are accident initiators nor does it adversely impact any accident mitigating system. This amendment is purely administrative in nature.
(3) Does the proposed change involve a significant reduction in margin of safety?
No. Implementation of this amendment will not involve a significant reduction in a margin of safety. Margin of safety is related to the confidence in the ability of the fission product barriers to perform their design functions during and following an accident situation. These barriers include the fuel cladding, the reactor coolant system, and the containment system. The performance of these fission product barriers will not be impacted by implementation of this amendment. System[s] and components are not affected and therefore are capable of performing as designed. This amendment is purely administrative nature, it will have no effect on any safety margins.
Conclusion.
Based on the preceding analysis, it is concluded that the proposed license amendment does not involve a Significant
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
Duke has evaluated whether or not a significant hazards consideration is involved with the proposed amendments by focusing on the three standards set forth in 10 CFR 50.92, “issuance of amendment,” as discussed below:
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed changes to the reactor coolant system (RCS) pressure and temperature (P-T) limits and low temperature overpressure protection (LTOP) limits are developed utilizing the methodology of American Society of Mechanical Engineers (ASME) Section XI, Appendix G, in conjunction with the methodology of ASME Code Case N-641. Usage of these methodologies provides compliance with the underlying intent of 10 CFR [Part] 50 Appendix G and provides operational limits established to prevent non-ductile failure of the reactor vessel. The Loss of Coolant Accident analysis and other accident analyses in the Updated Final Safety Analysis Report (UFSAR) do not assume failure of the reactor vessel. The P-T and LTOP limits are not initiators or contributors to accident analyses addressed in the UFSAR. The proposed changes do not alter any assumption previously made in the radiological consequence evaluations nor affect the mitigation of the radiological consequences of an accident previously evaluated. Therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The changes to RCS P-T limits and LTOP limits are proposed to prevent non-ductile failure of the reactor vessel. The proposed changes do not modify the RCS pressure boundary, nor make any physical changes to the facility. The proposed changes do not introduce any new mode of system operation or failure mechanism. Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The proposed changes are developed utilizing the methodology of ASME Section XI, Appendix G, in conjunction with the methodology of ASME Code Case N-461. Usage of these methodologies provides compliance with the underlying intent of 10 CFR [Part] 50 Appendix G and provides operational limits established to prevent non-ductile failure of the reactor vessel. This Code case constitutes relaxation from the current requirements of 10 CFR [Part] 50 Appendix G. The alternate methodology allowed by the Code case is based on industry experience gained since the inception of the 10 CFR [Part] 50 Appendix G requirements and replaces some requirements that have now been determined to be excessively conservative. The more appropriate assumptions and provisions allowed by the Code case maintain a margin of safety that is consistent with the intent of 10 CFR [Part] 50 Appendix G. Therefore, the proposed changes do not involve a significant reduction in a margin of safety.
Based on the above, Duke concludes that the proposed amendments present no significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed 1.4% increase in maximum core thermal power is based on the use of instrumentation that supports a reduction in the measurement uncertainty value assumed in certain safety analyses. The affected analyses now use an uncertainty value of 2% which was required by 10 CFR [Part] 50 Appendix K at the time that the plant was originally licensed. At that time, measurement of feedwater flowrate in the plant secondary side used differential pressure-type flow venturis. The plant secondary side thermal calorimetric is used to determine reactor thermal power. A June 2000 revision to 10 CFR [Part] 50 Appendix K permitted the use of lower uncertainty values in the affected analyses, if the reduced value can be justified. Entergy Nuclear Operations (ENO) has implemented the use of Caldon, Inc. Leading Edge Flowmeter (LEFM) technology to measure feedwater flowrate. The LEFM measures fluid velocity by measuring the transit time of ultrasonic pulses introduced into the fluid stream. The LEFM Check System implemented at Indian Point 2 has a demonstrated measurement accuracy of 0.6%. Based on this measurement accuracy, the licensed thermal power can be increased 1.4% by reducing the assumed uncertainty used in safety analyses
Analyses and evaluations associated with the proposed change to core thermal power have demonstrated that applicable acceptance criteria for plant systems, components, and analyses (including the Final Safety Analysis Report [FSAR] Chapter 14 safety analyses) will continue to be met for the proposed 1.4% increase in licensed core thermal power for Indian Point 2. The subject increase in core thermal power will not result in conditions that could adversely affect the integrity (material, design, and construction standards) or the operational performance of any potentially affected system, component or analysis. Therefore, the probability of an accident previously evaluated is not affected by this change. The subject increase in core thermal power will not adversely affect the ability of any safety-related system to meet its intended safety function. Further, the radiological dose evaluations in support of this power uprate effort show that the current FSAR Chapter 14 radiological analyses are unaffected, and that the current dose analyses of record bound plant operation with the subject increase in licensed core thermal power level.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed license amendment increases the maximum allowed core thermal power through the use of feedwater flow instrumentation that supports a reduction in the measurement uncertainty assumed in certain safety analyses. The LEFM Check System instrumentation has greater measurement accuracy than the differential pressure-type flow venturi instrumentation that was originally used so that the measurement uncertainty assumed in certain analyses can be correspondingly reduced. Both the venturi and LEFM flow instrumentation provide data that is used by plant operators to monitor the thermal output of the plant. The instrumentation does not perform an automatic actuation function and there are no output signals to plant safety systems or control systems. Therefore, instrumentation malfunction or failure does not introduce new accident scenarios or equipment failure mechanisms. Operation, maintenance, or failure of either instrumentation system does not have an adverse effect on safety-related systems or any structures, systems, and components required for transient or accident mitigation.
Operating the plant at a new maximum core thermal power of 3114.4 MWt, which is 1.4% greater than the current maximum of 3071.4 MWt, is bounded by existing or updated analyses which demonstrate that established limits and acceptance criteria continue to be met. Operating at the new power level does not create new or different accident initiators and existing credible malfunctions are bounded by existing or updated analyses or evaluations.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The evaluations and analyses associated with the proposed increase in maximum core thermal power demonstrate that applicable acceptance criteria will continue to be met. The existing licensed maximum core thermal power level incorporates a 2% measurement uncertainty for the analysis of loss-of-coolant-accidents as originally required by Appendix K of 10 CFR [Part] 50. The regulations have subsequently been revised to allow the option of justifying smaller measurement uncertainties by using more accurate instrumentation to calculate reactor thermal power. Certain analyses that already assume a bounding core power level because of the 2% measurement uncertainty are not changed as a result of the proposed increase in core thermal power. Use of the LEFM instrumentation with improved measurement accuracy supports the use of a smaller measurement uncertainty assumption in the safety analyses. Other analyses were updated or evaluations were performed to demonstrate that nuclear steam supply and balance-of-plant systems and components will continue to perform, under normal and credible transient conditions, within established limits.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. The proposed TS change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The derivation of the cycle specific Safety Limit Minimum Critical Power Ratios (SLMCPRs) for incorporation into the Technical Specifications (TS), and their use to determine cycle specific thermal limits, has been performed using the methodology discussed in “General Electric Standard Application for Reactor Fuel,” NEDE-24011-P-A-14 (GESTAR-II), and U.S. Supplement, NEDE-24011-P-A-14-US, June, 2000, which incorporates Amendment 25. Amendment 25 was approved by the NRC [Nuclear Regulatory Commission] in a March 11, 1999 safety evaluation report.
The basis of the SLMCPR calculation is to ensure that greater than 99.9% of all fuel rods in the core avoid transition boiling if the limit is not violated. The new SLMCPRs preserve the existing margin to transition boiling. The GE-14 fuel is in compliance with Amendment 22 to “General Electric Standard Application for Reactor Fuel,” NEDE-24011-P-A-14 (GESTAR-II), and U.S. Supplement, NEDE-24011-P-A-14-US, June, 2000, which provides the fuel licensing acceptance criteria. The probability of fuel damage will not be increased as a result of this change. Therefore, the proposed TS change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. The proposed TS change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The SLMCPR is a TS numerical value, calculated to ensure that transition boiling does not occur in 99.9% of all fuel rods in the core if the limit is not violated. The new SLMCPRs are calculated using NRC approved methodology discussed in “General Electric Standard Application for Reactor Fuel,” NEDE-24011-P-A-14 (GESTAR-II), and U.S. Supplement, NEDE-24011-P-A-14-US, June, 2000, which incorporates Amendment 25. Additionally, the GE-14 fuel is in compliance with Amendment 22 to “General Electric Standard Application for Reactor Fuel,” NEDE-24011-P-A-14 (GESTAR-II), and U.S. Supplement, NEDE-24011-P-A-14-US, June 2000, which provides the fuel licensing acceptance criteria. The SLMCPR is
3. The proposed TS change does not involve a significant reduction in a margin of safety.
There is no significant reduction in the margin of safety previously approved by the NRC as a result of the proposed change to the SLMCPRs, which includes the use of GE-14 fuel. The new SLMCPRs are calculated using methodology discussed in “General Electric Standard Application for Reactor Fuel,” NEDE-24011-P-A-14 (GESTAR-II), and U.S. Supplement, NEDE-24011-P-A-14-US, June, 2000, which incorporates Amendment 25. The SLMCPRs ensure that greater than 99.9% of all fuel rods in the core will avoid transition boiling if the limit is not violated when all uncertainties are considered, thereby preserving the fuel cladding integrity. Therefore, the proposed TS change will not involve a significant reduction in the margin of safety previously approved by the NRC.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. The proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The scram discharge volume (SDV) and control rod drive (CRD) system, including the associated SDV vent and drain isolation valves, are not initiators to any accident sequence analyzed in the Updated Final Safety Analysis Report (UFSAR). Operation in accordance with the proposed Technical Specification (TS) ensures that the SDV and control rods are capable of performing their function as described in the UFSAR; therefore, the mitigative functions supported by the SDV and control rods will continue to provide the protection assumed by the analysis. The addition of specific TS actions to be taken for inoperable SDV vent or drain isolation valves will not challenge the ability of the SDV and control rods to perform their design function. Appropriate monitoring and maintenance, consistent with industry standards, will continue to be performed. In addition, the CRD system including the SDV isolation valves is within the scope of 10 CFR 50.65, “Requirements for monitoring the effectiveness of maintenance at nuclear power plants,” which will ensure the control of maintenance activities associated with the CRD system and SDV isolation valves.
Under the proposed TS changes, the SDV vent and drain lines may be unisolated under administrative control. This allows any accumulated water in the line to be drained, to preclude a reactor scram on SDV high level. This is acceptable since the administrative controls ensure the valve can be closed quickly, by a dedicated operator, if a scram occurs with the valve open. The 8-hour allowable outage time to isolate the line is based on the low probability of a scram occurring while the line is not isolated and unlikelihood of significant CRD seal leakage.
The proposed changes do not involve any physical change to structures, systems, or components (SSCs) and do not alter the method of operation or control of SSCs. The current assumptions in the safety analysis regarding accident initiators and mitigation of accidents are unaffected by these proposed changes. No additional failure modes or mechanisms are being introduced and the likelihood of previously analyzed failures remains unchanged.
The integrity of fission product barriers, plant configuration, and operating procedures as described in the UFSAR will not be affected by these proposed changes. Therefore, the consequences of previously analyzed accidents will not increase because of these proposed changes.
Based on the above discussion, the proposed TS changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. The proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed changes do not involve a physical alteration of the plant. No new equipment is being introduced, and installed equipment is not being operated in a new or different manner. There are no setpoints, at which protective or mitigative actions are initiated, affected by these proposed changes. These proposed changes will not alter the manner in which equipment operation is initiated, nor will the function demands on credited equipment be changed. Any alteration in procedures will continue to ensure that the plant remains within analyzed limits, and no change is required to the procedures relied upon to respond to an off-normal event as described in the UFSAR. As such, no new failure modes are being introduced. The changes do not alter assumptions made in the safety analysis and licensing basis.
Therefore, the proposed TS changes do not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. The proposed amendment does not involve a significant reduction in a margin of safety.
The margin of safety is established through equipment design, operating parameters, and the setpoints at which automatic actions are initiated. The proposed changes are acceptable because the operability of the SDV and SDV isolation valves is unaffected, there is no detrimental impact on any equipment design parameter, and the plant will still be required to operate within assumed conditions. Operation in accordance with the proposed TS ensures that the SDV and control rods are capable of performing their functions as described in the UFSAR. Therefore, the support of the SDV and control rods in the plant response to analyzed events will continue to provide the margins of safety assumed by the analysis. The additions to TS for inoperable SDV vent and drain isolation valves will not challenge the ability of the SDV or control rods to perform their design function. Appropriate monitoring and maintenance, consistent with industry standards, will continue to be performed. In addition, CRD system, including the SDV vent and drain isolation valves, are within the scope of 10 CFR 50.65, “Requirements for monitoring the effectiveness of maintenance at nuclear power plants,” which will ensure the control of maintenance activities associated with the CRD system. This provides sufficient management control of the requirements that assure the control rods and CRD system are maintained in a highly reliable condition. Although there is an increase in allowable outage time, this increase was evaluated and determined not to be a significant reduction in a margin of safety.
The proposed TS Actions for inoperable SDV vent and drain isolation valves are reasonable and consistent with approved standards, guidance and regulations.
Based on the above discussion, the proposed TS changes do not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
Criterion 1—The Proposed Change Does Not Involve a Significant Increase in the Probability or Consequences of an Accident Previously Evaluated.
The proposed change relaxes the time allowed to perform a missed surveillance. The time between surveillances is not an initiator of any accident previously evaluated. Consequently, the probability of an accident previously evaluated is not significantly increased. The equipment being tested is still required to be operable and capable of performing the accident mitigation functions assumed in the accident analysis. As a result, the consequences of any accident previously evaluated are not significantly affected. Any reduction in confidence that a standby system might fail to perform its safety function due to a missed surveillance is small and would not, in the absence of other unrelated failures, lead to an increase in consequences beyond those estimated by existing analyses. The addition of a requirement to assess and manage the risk introduced by the missed surveillance will further minimize possible concerns. Therefore, this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
Criterion 2—The Proposed Change Does Not Create the Possibility of a New or Different Kind of Accident From Any Previously Evaluated.
The proposed change does not involve a physical alteration of the plant (no new or different type of equipment will be installed) or a change in the methods governing normal plant operation. A missed surveillance will not, in and of itself, introduce new failure modes or effects and any increased chance that a standby system might fail to perform its safety function due to a missed surveillance would not, in the absence of other unrelated failures, lead to an accident beyond those previously evaluated. The addition of a requirement to assess and manage the risk introduced by the missed surveillance will further minimize possible concerns. Thus, this change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
Criterion 3—The Proposed Change Does Not Involve a Significant Reduction in the Margin of Safety.
The extended time allowed to perform a missed surveillance does not result in a significant reduction in the margin of safety. As supported by the historical data, the likely outcome of any surveillance is verification that the LCO [Limiting Condition for Operation] is met. Failure to perform a surveillance within the prescribed frequency does not cause equipment to become inoperable. The only effect of the additional time allowed to perform a missed surveillance on the margin of safety is the extension of the time until inoperable equipment is discovered to be inoperable by the missed surveillance. However, given the rare occurrence of inoperable equipment, and the rare occurrence of a missed surveillance, a missed surveillance on inoperable equipment would be very unlikely. This must be balanced against the real risk of manipulating the plant equipment or condition to perform the missed surveillance. In addition, parallel trains and alternate equipment are typically available to perform the safety function of the equipment not tested. Thus, there is confidence that the equipment can perform its assumed safety function. Therefore, this change does not involve a significant reduction in a margin of safety.
Based upon the reasoning presented above and the previous discussion of the amendment request, the requested change does not involve a significant hazards consideration.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. This proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed amendment involves implementation of the Alternative Source Term for the Fuel Handling Accident at the Perry Nuclear Power Plant (PNPP). There are no physical design modifications to the plant associated with the proposed amendment. The revised calculations do not impact the initiators of a Fuel Handling Accident in any way. They also do not impact the initiators for any other design basis events. Therefore, because design basis accident initiators are not being altered by adoption of the Alternative Source Term analyses, the
With respect to consequences, the only previously evaluated accident that could be affected is the Fuel Handling Accident. The Alternative Source Term is an input to calculations used to evaluate the consequences of an accident, and does not by itself affect the plant response, or the actual pathway of the radiation released from the fuel. It does however, better represent the physical characteristics of the release, so that appropriate mitigation techniques may be applied. For the Fuel Handling Accident, the AST analyses demonstrate acceptable doses, within regulatory limits, after 24 hours of radiological decay, without credit for Containment/Fuel Handling Building integrity, filtration system operability, or Control Room automatic isolation. Therefore, the consequences of an accident previously evaluated are not significantly increased.
Based on the above conclusions, this proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. This proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed amendment does not involve a physical alteration of the plant (no new or different type of equipment will be installed and there are no physical modifications to existing equipment associated with the proposed changes). Also, no changes are proposed to the methods governing plant/system operation during handling of recently irradiated fuel, so no new initiators or precursors of a new or different kind of accident are created. New equipment or personnel failure modes that might initiate a new type of accident are not created as a result of the proposed amendment.
Thus, this amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. This proposed amendment does not involve a significant reduction in a margin of safety.
The proposed amendment is associated with the implementation of a new licensing basis for PNPP Fuel Handling Accidents. Approval of the change from the original source term to a new source term taken from Regulatory Guide 1.183 is being requested. The results of the accident analyses, revised in support of the proposed license amendment, are subject to revised acceptance criteria. The analyses have been performed using conservative methodologies, as specified in Regulatory Guide 1.183. Safety margins have been evaluated and analytical conservatism has been utilized to ensure that the analyses adequately bound the postulated limiting event scenario. The dose consequences of the limiting Fuel Handling Accident remains within the acceptance criteria presented in 10 CFR 50.67, “Accident Source Term,” and Regulatory Guide 1.183.
The proposed changes continue to ensure that the doses at the exclusion area and low population zone boundaries, as well as the Control Room, are within corresponding regulatory limits. For the Fuel Handling Accident, Regulatory Guide 1.183 conservatively sets the Exclusion Area Boundary (EAB) and Low Population Zone (LPZ) limits below the 10 CFR 50.67 limit, and sets the Control Room limit consistent with 10 CFR 50.67.
Since the proposed amendment continues to ensure the doses at the EAB, LPZ and Control Room are within corresponding regulatory limits, the proposed license amendment does not involve a significant reduction in a margin of safety.
Therefore, the proposed amendment does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
Florida Power Corporation (FPC) has evaluated the proposed License Amendment Request (LAR), which consists of the identified Technical Specification changes and exemption requests, against the criteria of 10 CFR 50.92(c). The Technical Specification changes are categorized as follows:
1. Modification of Section 4.2.1, DESIGN FEATURES, Fuel Assemblies, and to include the M5 advanced alloy for fuel rod cladding and fuel assembly structural material[.]
2. Removal of design information such as maximum fuel enrichment, nominal active fuel length, maximum individual rod weight, and details of Control Rod content. Adopting the wording from the Standard ITS.
3. Addition to ITS 4.2.1 of the following sentence: “A limited number of lead test assemblies that have not completed representative testing may be placed in nonlimiting core regions.” Crystal River Unit 3 does not intend to load lead test assemblies in the upcoming fuel cycle (Cycle 14). This sentence is being added for consistency with NUREG 1430, Revision 2.
FPC has concluded that this proposed LAR does not involve a significant hazards consideration. The following is a discussion of how each of the criteria is satisfied.
(1) [Does not] [i]nvolve a significant increase in the probability or consequences of an accident previously evaluated.
(2) [Does not] [c]reate the possibility of a new or different kind of accident from any accident previously evaluated.
(3) [Does not] [i]nvolve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
(1) Would operation of the facility in accordance with the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
No. The proposed amendment to eliminate reliance on Boraflex
• A fuel handling accident (FHA)
• A fuel mispositioning event
• A cask drop accident
• A loss of spent fuel pool cooling
The proposed amendment does not modify the facility. A new criticality analysis credits existing soluble boron in the SFP water and specific fuel positioning rules for reactivity control, without requiring any physical changes to the fuel storage racks. The amendment does not change any rack module location or any module's designation as Region 1 or Region 2 storage. There is no significant increase in the probability of a fuel handling accident in the SFP that is caused by crediting soluble boron and new fuel positioning rules, rather than Boraflex
There is no increase in the probability of an accidental fuel assembly mispositioning when crediting the presence of soluble boron in fuel pool water for reactivity control. Fuel assembly selection and manipulation will continue to be controlled by approved fuel handling procedures; these procedures require the identification of a verified target location prior to grappling the assembly. Fuel placement will be in accordance with the revised TS.
There is no increase in the consequences of either an FHA or an accidental mispositioning of a fuel assembly into the SFP racks. Consequences of a FHA are not increased because the proposed amendment does not change the fuel fission product inventory, local meteorological conditions, or the fission product partition factor provided by fuel pool water. The consequences of an accidental misload are not increased because the criticality analysis demonstrates that the fuel array will remain sub-critical, even if the pool contains a boron concentration below the minimum level required by Technical Specifications. The TS will ensure that an adequate SFP soluble boron concentration is maintained for all conditions.
The proposed fuel positioning rules do not cause the total radionuclide inventory present in the spent fuel pool to increase, or
The proposed change does not increase either the probability or the consequences of a loss of normal SFP cooling. The proposed fuel positioning rules do not require any interaction with the fuel pool cooling system. Credit for a portion of the existing soluble boron concentration does not change its interaction with the fuel pool cooling system. The ability to detect and mitigate a loss of SFP cooling event is unchanged, and the revised criticality analysis considered the effects of boiling in the SFP and found them acceptable.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
(2) Would operation of the facility in accordance with the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
No. The proposed change does not modify the physical plant, nuclear fuel, or the design function and operation of the spent fuel pool storage racks at St. Lucie Unit 1. A TS controlled minimum concentration of soluble boron has always been required in the St. Lucie Unit 1 spent fuel pool; as such, the possibility of an inadvertent fuel pool dilution event has always existed. However, the spent fuel pool dilution analysis that accompanies this submittal demonstrates that no credible dilution event could increase fuel pool reactivity such that the effective neutron multiplication factor (k
The limiting fuel assembly mispositioning event does not represent a new or different type of accident. The mispositioning of a fuel assembly within the fuel storage racks has always been possible. The locations of SFP rack modules and the specific modules assigned to each storage region remain unchanged; analysis results show that the storage racks remain subcritical, with substantial margin, following a worst case fuel misloading event. Therefore, a fuel assembly misload event that involves new fuel storage arrangements required by the criticality analysis does not result in a new or different type of criticality accident.
Therefore, the proposed change does not create the possibility of a new or different type of accident from any accident previously evaluated.
(3) Would operation of the facility in accordance with the proposed amendment involve a significant reduction in a margin of safety?
No. The revised fuel positioning requirements proposed by this license amendment provide sufficient safety margin to ensure that the spent fuel pool storage racks will always remain subcritical. To comply with the requirements of 10 CFR 50.68 when crediting soluble boron, the current TS reactivity limit for the fuel storage racks (
The proposed amendment maintains the 0.95 reactivity limit by a combination of restrictions on fuel characteristics and fuel positioning, storage cell geometry and by crediting a portion of the soluble boron in the SFP, rather than by crediting Boraflex.
The proposed license amendment does not reduce the margin of safety provided by the soluble boron normally present in fuel pool water; the TS minimum permissible boron concentration is not decreased. The TS minimum required value of 1720 ppm is substantially greater than the 500 ppm value required by the updated criticality analysis to assure k
No credible dilution of the fuel pool can result in an SFP soluble boron concentration less than the minimum value required by the criticality analysis. Therefore, an inadvertent dilution event can not challenge safety margins.
Based on these evaluations and the supporting analyses, operating the facility with the proposed amendment does not involve in a significant reduction in any margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
GPU Nuclear has determined that Technical Specification Change Request No. 62 involves no significant hazard consideration as defined in 10 CFR 50.92.
1. The proposed changes to the SNEC Technical Specifications do not involve a significant increase in the probability of occurrence or consequences of an accident or malfunction of equipment important to safety previously analyzed in the safety analysis report.
As described in the change to delete Technical Specification 1.1.2, radiation levels inside the Containment Vessel will be below that necessary to maintain the Containment Vessel as an Exclusion Area. Further as required by modified Technical Specification 2.1.1 ventilation controls will be established to monitor and control any potential releases of airborne radioactivity during activities involving removal of the upper dome. Finally an analysis has been performed to determine the dose to a maximally exposed individual due to an accidental release while cutting the Containment Vessel. In developing a source term for the event it was assumed that following the concrete removal process the interior surfaces of the upper Containment Vessel dome was homogeneously coated with concrete dust. NUREG 1507 “Minimum Detectable Concentrations with Typical Radiation Survey Instruments for Various Contaminants and Field Conditions” describes an experiment to determine the attenuation effects due to dusty conditions. The maximum dust loading presented was 9.99 mg/cm
Table 1 provides the mix of isotopes remaining at the SNEC Facility based on the most recent survey results and isotope decay. During the removal operation a resuspension factor of 1.9E-2/m (as described in NUREG/CR 0130 “Technology, Safety and Costs of Decommissioning a Reference Pressurized Water Reactor Power Station”, Volume 2, page J-27) was selected to represent the amount of concrete dust going airborne. This parameter is about one order of magnitude larger than that used in any other accident analyses described in the NUREG. This entire volume of dust was assumed to be released, unfiltered, directly to the environment.
An accident dispersion factor (c/Q) of 3.41E-3 sec/m
Based on the above a calculated dose of 3.23E-4 mrem to the maximally exposed individual represents a conservative estimate for an accidental release. For comparison Section 3.1 of the SNEC Facility USAR estimated the dose from an unfiltered release due to a material handling event of 1.5 mrem to the maximally exposed individual.
Thus this proposed change does not involve a significant increase in the probability of occurrence or consequences of an accident or malfunction of equipment important to safety previously analyzed in the SNEC Facility USAR.
For the portions of the amendment that would make a change to the organization to add the position of Vice-President GPU Nuclear Oversight to reflect the merger of GPU Inc. and FirstEnergy Corp, these changes are administrative in nature. As such they have no effect on the probability of occurrence or consequences of an accident or malfunction of equipment important to safety.
2. The proposed changes to the SNEC Technical Specifications will not create the possibility for an accident or malfunction of a different type than any previously evaluated in the safety analysis report.
As described in the response to item 1 above, the limiting accidental release during segmentation of the Containment Vessel dome involves the direct release of radioactive material to the environment. This event is similar to both a material handling event as described in Section 3.1 of the SNEC Facility USAR, and loss of engineering controls during segmentation as described in Section 3.4 of the SNEC Facility USAR. Thus the possibility of a new accident is not created.
For the portions of the amendment that would make a change to the organization to add the position of Vice-President GPU Nuclear Oversight to reflect the merger of GPU Inc. and FirstEnergy Corp, these changes are administrative in nature. As such they have no effect on the possibility of an accident or malfunction of a different type.
3. The changes will not involve a significant reduction in the margin of safety as defined in the basis for any technical specification for SNEC. The SNEC Facility Technical Specifications do not contain a defined margin of safety. However the implied margin of safety is to protect members of the public from exposure to radioactive material.
At the point in time that these Technical Specifications would take affect general radiation levels in the SNEC Facility Containment Vessel would be such that the Containment Vessel could be opened for unrestricted use as defined in 10 CFR 20.1301. Additionally the dose to a maximally exposed individual from an accidental release during removal of the Containment Vessel dome is several orders of magnitude below that from the limiting accidents defined in the SNEC Facility USAR. Thus the margin of safety is not reduced.
For the portions of the amendment that would make a change to the organization to add the position of Vice-President GPU Nuclear Oversight to reflect the merger of GPU Inc. and FirstEnergy Corp, these changes are administrative in nature. As such they have no effect on the margin of safety as defined in the basis for any technical specification for SNEC.
The NRC staff has reviewed the analysis of the licensees and, based on this review, it appears that the three standards of 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Do the proposed changes involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change would revise the CNS Operating License condition concerning
2. Do the proposed changes create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed amendment does not physically change the fit, form, or function of any SSC credited in the accident analyses or in the FHA, Technical Requirements Manual (TRM), or the USAR. The proposed change does not alter assumptions or requirements used in the FHA, TRM, or USAR, nor does it affect the CNS Fire Protection program. It does not, therefore, alter the FP program or affect the plant's ability to achieve and maintain safe shutdown in the event of a fire, and it does not result in a reduction in the level of fire protection of the facility. Because it does not change FP requirements, the FP program or fire-mitigating SSCs, this proposed change does not create the possibility of a new or different kind of accident from those previously evaluated for CNS.
3. Do the proposed changes involve a significant reduction in the margin of safety?
The proposed amendment does not alter the design features of the approved FP plan. The proposed amendment does not alter administrative controls in the CNS Fire Protection program necessary to ensure required performance of physical barriers during anticipated operational occurrences and postulated accidents. The proposed change does not alter the NRC approved Fire Protection program as described in FP SER [safety evaluation report] dated May 23, 1979, SER Supplement 1 dated November 21, 1980, SER dated September 21, 1983, SER dated April 16, 1984, SER dated August 21, 1985, SER dated April 10, 1986, SER dated November 7, 1988, SER dated August 15, 1995. It does not affect the USAR, the TRM, the FHA or the commitments contained therein. It does not physically change the fit, form, or function of any SSC credited in the accident analyses or in these documents. Because it does not change the requirements, plan or mitigating SSCs, this proposed change does not involve a significant reduction in a margin of safety.
In summary, the proposed amendment does not involve a significant increase in the probability or consequences of an accident or creates the possibility of a new or different kind of accident or involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Involve a significant increase in the probability or consequences of an accident previously evaluated.
The DGs are accident mitigating equipment, not accident initiating equipment. Consequently, there will be no impact on any accident probabilities by the approval of the requested amendment.
The proposed change does not affect the performance of any equipment used to mitigate the consequences of an analyzed accident. Consequently, no analysis assumptions are violated and there are no adverse effects on the factors that contribute to off-site or on-site dose as the result of an accident.
The format, typographical, grammatical, and standardized naming convention changes in addition to the WORD conversion are administrative in nature and therefore have no impact on accident initiators or plant equipment.
Based on the above, the proposed administrative changes and permitting DG inspections to be performed during plant operation does not involve a significant increase in the probabilities or consequences of an accident previously evaluated.
2. Create the possibility of a new or different kind of accident from any accident previously evaluated.
No new accident mechanisms would be created as a result of NRC approval of this amendment request since no changes are being made to the plant that would introduce any new accident mechanisms. Equipment would be operated in the same configurations with the exception of the mode in which the inspection is credited. The inspection will be performed within the current approved Technical Specification limiting condition for operation (LCO). This amendment request does not impact any plant systems that are accident initiators or adversely impact any accident mitigating systems.
The proposed administrative changes do not involve any modifications to the physical plant or operations. Administrative changes do not contribute to accident initiators nor do they produce a new accident scenario. Based on the above, implementation of the proposed change would not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Involve a significant reduction in the margin of safety.
Margin of safety is related to the confidence in the ability of the fission product barriers to perform their design functions during and following an accident situation. These barriers include fuel cladding, the reactor coolant system, and the containment system. The proposed change to the inspection timing for the DGs do not affect the operability requirements for the DGs, as verification of such operability will continue to be performed as required. Continued verification of operability supports the capability of the DGs to perform their required function of providing emergency power to plant equipment that supports the fission product barriers. Consequently, the performance of these fission product barriers will not be impacted by implementation of this license amendment request and therefore does not involve a significant reduction in the margin of safety.
The administrative changes do not affect plant equipment or operation. Therefore, the proposed changes do not involve a significant reduction in the margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. The proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed change revises the Technical Specification (TS) 3.3.1 Table 3.3.1-1 term “minimum measured flow per loop” to “measured loop flow” in the allowable value and nominal trip setpoint for the Reactor Coolant Flow-Low reactor trip function and allows an alternate method for the measurement of reactor coolant system (RCS) total flow to meet TS surveillance requirement (SR) SR 3.4.1.4 through measurement of the elbow tap differential pressures on the RCS primary cold legs.
The change will not increase the probability of an accident previously evaluated because adequate RCS flow will still be assured. The Reactor Coolant Flow-Low reactor trip function allowable value and nominal trip setpoint are accident mitigation functions and are not an accident initiator. The elbow tap method to measure RCS flow and the change to the flow definition associated with the Reactor Coolant Flow-Low reactor trip function do not involve a plant modification.
For the elbow tap method to measure RCS flow, sufficient margin exists to account for all reasonable instrument uncertainties and therefore the RCS flow will continue to be maintained at a value which is bounded by the design basis accident initial conditions. The change to the flow definition associated with the Reactor Coolant Flow-Low reactor trip function allowable value and nominal trip setpoint does not change a design basis accident initial condition or the conditions at the time of reactor trip during a design basis accident and therefore has no adverse effect on the design basis accidents which credit the Reactor Coolant Flow-Low reactor trip setpoint.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. The proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed change to the flow definition associated with the Reactor Coolant Flow-Low reactor trip function allowable value and nominal trip setpoint and the proposed elbow tap method to measure RCS flow will not create the possibility of a new or different type of accident from any previously evaluated. There are no physical changes being made to the plant and there are no changes in operation of the plant that could introduce a new failure mode, creating an accident which has not been evaluated.
Therefore, the proposed change does not create the possibility of a new or different accident from any accident previously evaluated.
3. The proposed change does not involve a significant reduction in a margin of safety.
The proposed change to the flow definition associated with the Reactor Coolant Flow-Low reactor trip function allowable value and nominal trip setpoint and the proposed elbow tap method to measure RCS flow will not reduce the margin of safety. For the proposed elbow tap flow method, sufficient margin exists to account for all reasonable instrument uncertainties and thus the RCS flow will continue to be maintained at a value which is bounded by the design basis accident initial conditions, and no adverse effect on the plant response to design basis accidents is created. The change in the flow definition associated with the Reactor Coolant Flow-Low reactor trip function allowable value and nominal trip setpoint does not change a design basis accident initial condition or the conditions at the time of reactor trip during a design basis accident, and therefore has no effect on the plant response to design basis accidents which credit the Reactor Coolant Flow-Low reactor trip setpoint. Since the change does not affect the response to design basis accidents, it does not result in a decrease in departure from nucleate boiling margin or reactor coolant system peak pressure margin for the design basis accidents.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment requests involve no significant hazards consideration.
1. The proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed changes in the required action statements in the Limiting Conditions for Operation (LCOs) for the allowable surveillance testing configurations for both the reactor trip system (RTS) and engineered safety feature actuation system (ESFAS) instruments will not change the probability or consequences of an accident previously evaluated.
The proposed surveillance testing configuration changes only clarify available surveillance testing configurations and
Previous Diablo Canyon Power Plant (DCPP) submittals have been approved providing for the capability of surveillance testing in trip and/or in bypass. Surveillance testing in bypass is considered the preferred method for most Eagle 21 instruments. However, where testing by tripping a single channel without causing a function actuation is acceptable, that capability was also maintained.
Although some of the changes may appear to add new allowable surveillance testing configurations, all of the proposed configurations are based on the application of the intent behind the existing Technical Specification (TS) wording. The limitations on surveillance testing configurations provided by the proposed changes are to ensure that there are no spurious actuations and that during testing a valid signal will cause the associated functions to actuate as designed. None of these configurations place the associated function in a logic that has not been previously evaluated and approved.
The proposed elimination of the channel calibration for the turbine stop valve position switches will not change the probability or consequences of an accident previously evaluated since these switches are not subject to drift. These limit switches are installed with fixed limit setpoints that actuate based on valve position and they are not calibrated in the field. As a result, a channel calibration being performed on these switches provides no useful purpose other than to verify function similar to the remaining trip actuation device operational test (TADOT). As a result, performing only the TADOT provides all necessary assurances of operability.
The correction of the turbine stop valve closure nominal trip setpoint is administrative in nature and will not change the probability or consequences of an accident previously evaluated. This was an oversight in the Improved Technical Specification (ITS) review and conversion process. The proposed change only returns the setpoint to the previously evaluated value.
The proposed change to the allowable value for Function 18.f, “Turbine Impulse Chamber Pressure, P-13,” is administrative in nature and will not change the probability or consequences of an accident previously evaluated. The P-13 intended trip setpoint has always been maintained at 10 percent and remains unchanged. This modification is performed to provide consistency with current methodology and NUREG-1431, and does not affect the operation of the protective function.
The proposed removal and relocation of the turbine trip function from ESFAS Function 5 will not change the probability or consequences of an accident previously evaluated. The turbine trip function is nonsafety-related and is not credited in any design bases accident scenario. The proposed change only clarifies importance of the two trip functions. The proposed changes in this LAR [License Amendment Request] do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. The proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed changes in the required action statements in the LCOs for the allowable surveillance testing configurations for both the RTS and ESFAS instruments will not create the possibility of a new or different kind of accident from any accident previously evaluated. The proposed changes only clarify previously available surveillance testing configurations and limitations on those configurations. These clarifications ensure maximum surveillance testing flexibility to prevent inadvertent actuation of these functions that could be a precursor for an accident. The changes do not modify any equipment, hardware or how the RTS and ESFAS functions respond to any accident condition.
The proposed elimination of the channel calibration for the turbine stop valve position switches will not create the possibility of a new or different kind of accident from any accident previously evaluated. This change does not modify any equipment, hardware or functions. The switches are installed with fixed limit setpoints that actuate based on valve position. The switches are not subject to drift and are not calibrated in the field. As a result, a channel calibration being performed on these switches provides no useful purpose other than to verify function similar to the required TADOT. As a result, performing only the TADOT provides equivalent assurances of operability.
The correction of the turbine stop valve closure nominal trip setpoint in Function 16.b, “Turbine Stop Valve Closure,” is administrative in nature and will not create the possibility of a new or different kind of accident from any accident previously evaluated. This was an oversight in the ITS review and conversion process. The proposed change does not modify any hardware or equipment, and only returns the setpoint to the previously evaluated value.
The proposed change to the allowable value for Function 18.f, “Turbine Impulse Chamber Pressure, P-13,” is administrative in nature and will not create the possibility of a new or different kind of accident from any accident previously evaluated. The P-13 intended (nominal) trip setpoint has always been maintained at 10 percent and remains unchanged. This change does not modify any equipment or hardware. This modification is performed to provide consistency with current methodology and NUREG-1431, and does not affect the operation of the protective function.
The proposed removal and relocation of the turbine trip function from ESFAS Function 5 will not create the possibility of a new or different kind of accident from any accident previously evaluated. The turbine trip function is nonsafety-related and is not credited in any design bases accident scenario. The proposed change only clarifies importance of the two trip functions.
3. The proposed change does not involve a significant reduction in a margin of safety.
The proposed changes in the required action statements in the LCOs for the allowable surveillance testing configurations for both the RTS and ESFAS instruments will not involve a significant reduction in a margin of safety. The proposed changes only clarify previously available surveillance testing configurations and limitations on those configurations. These clarifications ensure maximum surveillance testing flexibility to prevent inadvertent actuation of these functions that could be a precursor for an accident. The changes do not modify any equipment, hardware or how the RTS and ESFAS functions respond to any accident condition.
The proposed elimination of the channel calibration for the turbine stop valve position switches will not involve a significant reduction in a margin of safety. This change does not modify any equipment, hardware or functions. The switches are installed with fixed limit setpoints that actuate based on valve position. The switches are not subject to drift and are not calibrated in the field. As a result, a channel calibration being performed on these switches provides no useful purpose other than to verify function similar to the required TADOT. As a result, performing only the TADOT provides equivalent assurances of operability.
The correction of the turbine stop valve closure nominal trip setpoint in Function 16.b, is administrative in nature and will not involve a significant reduction in a margin of safety. This was an oversight in the ITS review and conversion process. The proposed change does not modify any hardware or equipment, and only returns the setpoint to the previously evaluated value.
The proposed change to the allowable value for Function 18.f, “Turbine Impulse Chamber Pressure, P-13,” is administrative in nature and will not involve a significant reduction in a margin of safety. The P-13 intended (nominal) trip setpoint has always been maintained at 10 percent and remains unchallenged. This change does not modify any equipment or hardware. This modification is performed to provide consistency with current methodology and NUREG-1431, and does not affect the operation of the protective function.
The proposed removal and relocation of the turbine trip function from ESFAS Function 5 does not involve a significant reduction in a margin of safety. The turbine trip function is nonsafety-related and is not credited in any design bases accident scenario. The proposed change only clarifies importance of the two trip functions.
None of the proposed changes affect the acceptance criteria for any analyzed event. There will be no effect on the manner in which safety limits or limiting safety system settings are determined nor will there be any effect on those plant systems necessary to assure the accomplishment of protection functions.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
In June 2001, the Nuclear Regulatory Commission (NRC) issued NUREG 1432, Revision 2, “Standard Technical Specifications Combustion Engineering Plants.” For Technical Specification 3.7.5, “Auxiliary Feedwater (AFW) System,” Surveillance Requirement (SR) 3.7.5.2 requires verification that each AFW pump's developed head at the flow test point is greater than or equal to the required developed head which ensures that AFW pump performance has not degraded during the cycle. This test confirms one point on the pump design curve and is indicative of overall performance. This proposed change will revise San Onofre Nuclear Generating Station (SONGS) Surveillance Frequency to be consistent with NUREG 1432, Revision 2. This change in and of itself will have no effect on the probability or consequences of an accident previously evaluated.
Once this change to the Technical Specification is approved, changes to the Surveillance Frequency of the AFW pumps would be controlled in accordance with the Risk-Informed Inservice Testing Program.
Therefore, the proposed change does not involve a significant increase in the probability of consequences of any accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed amendment will not change the design, configuration or method of operation of the plant. Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
Response: No.
The proposed amendment will change the SR 3.7.5.2 Frequency from “31 days on a Staggered Test Basis” to “In accordance with the Inservice Testing Program.” The proposed change does not change the operation or surveillance requirements. It does not change the design function of any of AFW system components. Therefore, the proposed change does not involve a significant reduction in the margin of safety.
Based on the above, Southern California Edison concludes that the proposed amendment present no significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly a finding of “no significant hazards consideration” is justified.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment requests involve no significant hazards consideration.
1. [Does] the proposed change [* * *] involve a significant increase in the probability or consequences of an accident previously evaluated[?]
The proposed change to Surveillance Requirement SR 3.6.4.1.2 would require that only one of the two secondary containment access doors be verified closed; presently, both doors are required to be verified closed. This change is administrative in nature in that it does not involve, require, or result from any physical change to me secondary containment boundary or access door configuration. The change to Surveillance Requirement SR 3.6.4.1.2 is consistent with TSTF Standard Technical Specification Change Traveler TSTF-18, Revision 1, and Surveillance Requirement SR 3.6.4.1.3 of Revision 2 of Volume 1 of NUREG-1433. As indicated in the “Justification” portion of Standard Technical Specification Change Traveler TSTF-18, Revision 1, verifying one of the two access doors is closed is sufficient to ensure that the infiltration of outside air does not prevent the establishment and preservation of the required negative pressure within the secondary containment. Indeed, neither the requirements regarding minimum negative pressure and maximum infiltration and drawdown time nor the actions required to be taken should these requirements not be met will be altered by me proposed Licensing amendment.
Because the physical characteristics and performance requirements of the secondary containment will not be altered and the change to Surveillance Requirement SR 3.6.4.1.2 is consistent with the current revision of NUREG-1433, the proposed Licensing amendment can not involve a significant increase in the probability or consequences of any accident previously evaluated.
2. [Does] the proposed change [* * *] create the possibility of a new or different kind of accident from any previously evaluated[?]
For the reasons previously discussed, neither the secondary containment boundary nor the access door configuration will be altered by or because of the proposed change to the surveillance requirement. Likewise, the requirements defining and governing secondary containment operability and functionality, that is, Standby Gas Treatment system flow rate and secondary containment negative pressure and drawdown limits, will not be changed. The secondary containment, including its access openings, will remain physically unaltered; will function as presently described in the Updated Final Safety Analysis Report [(UFSAR)]; and will be subject to the same structural and functional requirements. Under these circumstances, this change can not, and does not, create the possibility of a new or different kind of accident from any previously evaluated.
3. [Does] the proposed change [* * *] involve a significant decrease in the margin of safety[?]
The requirements defining and governing secondary containment operability and functionality, that is, Standby Gas Treatment system flow rate and secondary containment negative pressure and drawdown limits, will not be changed. The secondary containment, including its access openings will function as presently described in the [* * *] UFSAR and will be subject to the same structural and functional requirements. Therefore, this change can not, and does not, reduce any margin of safety associated with the secondary containment function.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Do the proposed changes involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
Overall protection system performance will remain within the bounds of the previously performed accident analyses since there are no hardware changes. The RTS [Reactor Trip System] instrumentation and reactivity control systems will be unaffected. Protection systems will continue to function in a manner consistent with the plant design basis. All design, material, and construction standards that were applicable prior to the request are maintained.
The probability and consequences of accidents previously evaluated in the FSAR [Final Safety Analysis Report] are not adversely affected because the changes to the Required Actions and LCO Notes assure the limits on SDM [Shutdown Margin] and refueling boron concentration continue to be met, consistent with the analysis assumptions and initial conditions included within the safety analysis and licensing basis. The activities covered by this amendment application are routine operating evolutions. The proposed changes do not reduce the capability of reborating the RCS.
The proposed changes will not involve a significant increase in the probability of any event initiators. The initiating event for an inadvertent boron dilution event, as discussed in FSAR Section 15.4.6, is a failure in the reactor makeup control system (RMCS) or operator error such that inventory makeup with the incorrect boron concentration enters the RCS by way of the CVCS [Chemical and Volume Control System]. Since the RMCS design is unchanged, there will be no initiating event frequency increase associated with equipment failures. However, there could be an increased exposure time per operating cycle to potential operator errors during TS Conditions that, heretofore, prohibited positive reactivity additions. As such, the RTS Instrumentation and RCS Loops TS Bases changes from TSTF [Technical Specification Task Force]-286, Revision 2, have been augmented to preclude the introduction of reactor makeup water into the RCS via the CVCS when one source range neutron flux channel is inoperable or when no RCS loop is in operation. The equipment and processes used to implement RCS boration or dilution evolutions are unchanged and the equipment and processes are commonly used throughout the applicable MODES under consideration. There will be no degradation in the performance of, or an increase in the number of challenges imposed on, safety-related equipment assumed to function during an accident situation. There will be no change to normal plant operating parameters or accident mitigation performance.
The proposed changes will not alter any assumptions or change any mitigation actions in the radiological consequence evaluations in the FSAR.
Therefore, the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Do the proposed changes create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
There are no hardware changes nor are there any changes in the method by which any safety-related plant system performs its safety function. This amendment will not affect the normal method of plant operation or change any operating limits. The proposed changes merely permit the conduct of normal operating evolutions when additional controls over core reactivity are imposed by the Technical Specifications. The proposed changes do not introduce any new equipment into the plant or alter the manner in which existing equipment will be operated. The changes to operating procedures are minor, with clarifications provided that required limits must continue to be met. No performance requirements or response time limits will be affected. These changes are consistent with assumptions made in the safety analysis and licensing basis regarding limits on SDM and refueling boron concentration.
No new accident scenarios, transient precursors, failure mechanisms, or limiting single failures are introduced as a result of this amendment. There will be no adverse effect or challenges imposed on any safety-related system as a result of this amendment.
This amendment does not alter the design or performance of the 7300 Process Protection System, Nuclear Instrumentation System, or Solid State Protection System used in the plant protection systems.
Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any previously evaluated.
3. Do the proposed changes involve a significant reduction in a margin of safety?
Response: No.
The proposed changes do not alter the limits on SDM or refueling boron concentration. The nominal trip setpoints specified in the Technical Specifications Bases and the safety analysis limits assumed in the transient and accident analyses are unchanged. None of the acceptance criteria for any accident analysis is changed. There will be no effect on the manner in which safety limits or limiting safety system settings are determined nor will there be any effect on those plant systems necessary to assure the accomplishment of protection functions. There will be no impact on the overpower limit, departure from nucleate boiling ratio (DNBR) limits, heat flux hot channel factor (F
Therefore, the proposed changes do not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and
Notice of Consideration of Issuance of Amendment to Facility Operating License, Proposed No Significant Hazards Consideration Determination, and Opportunity for A Hearing in connection with these actions was published in the
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.12(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) the applications for amendment, (2) the amendment, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment as indicated. All of these items are available for public inspection at the Commission's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management Systems (ADAMS) Public Electronic Reading Room on the internet at the NRC web site,
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated December 13, 2002.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated December 17, 2002.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated December 17, 2002.
The October 31 supplemental letter provided clarifying information that did not expand the scope of the amendment or change the initial proposed no significant hazards consideration determination.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated December 17, 2002.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated December 20, 2002.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated December 16, 2002.
The supplement dated September 24, 2002, provided clarifying information that did not change the scope of the June 24, 2002, application nor the initial proposed no significant hazards consideration determination.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated December 18, 2002.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated December 17, 2002.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated December 23, 2002.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated December 23, 2002.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated December 11, 2002.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated December 16, 2002.
For the Nuclear Regulatory Commission.
Oral presentations may not exceed ten (10) minutes. The time for individual presentations may be reduced proportionately, if necessary, to afford all participants who have submitted a timely request to participate an opportunity to be heard.
Participants wishing to submit a written statement for the record must submit a copy of such statement to OPIC's Corporate Secretary no later than 5 p.m., Tuesday, January 21, 2003. Such statements must be typewritten, double-spaced, and may not exceed twenty-five (25) pages.
Upon receipt of the required notice, OPIC will prepare an agenda for the hearing identifying speakers, setting forth the subject on which each participant will speak, and the time allotted for each presentation. The agenda will be available at the hearing.
A written summary of the hearing will be compiled, and such summary will be made available, upon written request to OPIC's Corporate Secretary, at the cost of reproduction.
Upon Written Request, Copies Available From: Securities and Exchange Commission, Office of Filings and Information Services, Washington, DC 20549.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), the Securities and Exchange Commission (the “Commission”) has submitted to the Office of Management and Budget (“OMB”) a request for extension of the previously approved collection of information described below.
Rule 17a-7 [17 CFR 270.17a-7] under the Investment Company Act of 1940 (the “Act”) is entitled “Exemption of
The Commission estimates that approximately 1,000 investment companies enter into transactions affected by rule 17a-7 each year and, therefore, are subject to the rule's information collection requirements.
Rule 17a-7 requires investment companies to maintain and preserve permanently a written copy of the procedures governing rule 17a-7 transactions. In addition, investment companies are required to maintain written records of each rule 17a-7 transaction for a period of not less than six years from the end of the fiscal year in which the transaction occurred. The collection of information required by rule 17a-7 is necessary to obtain the benefits of the rule. Responses will not be kept confidential. 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 control number.
Please direct general comments regarding the above information to the following persons: (i) Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; and (ii) Kenneth A. Fogash, Acting Associate Executive Director, Office of Information Technology, Securities and Exchange Commission, 450 5th Street, NW., Washington, DC 20549. Comments must be submitted to OMB within 30 days of this notice.
HSBC Bank plc, a public limited company incorporated under the laws of England and Wales (“Issuer”), has filed an application with the Securities and Exchange Commission (“Commission”), pursuant to section 12(d) of the Securities Exchange Act of 1934 (“Act”)
The Issuer stated in its application that it has complied with the NYSE's rules governing an issuer's voluntary withdrawal of a security from listing and registration. The Issuer's application relates solely to the Security's withdrawal from listing on the NYSE and from registration under section 12(b) of the Act
The Board of Directors (“Board”) of the Issuer approved a resolution on November 27, 2002 to withdraw the Issuer's Securities from listing on the NYSE. In making the decision to withdraw its Securities from the NYSE, the Issuer states the Securities are not widely held in the United States and the ongoing burdens associated with maintaining the listing are considered onerous and of little benefit to investors. The Issuer states that it intends to consolidate, as far as possible, the listings of all its Securities on a single stock exchange and be subject to the ongoing reporting requirements of that exchange. In addition, the Issuer states that all the terms and conditions of the Securities will remain unchanged. The Issuer states that its Securities began trading on the London Stock Exchange on December 20, 2002.
Any interested person may, on or before January 21, 2003 submit by letter to the Secretary of the Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609, facts bearing upon whether the application has been made in accordance with the rules of the NYSE and what terms, if any, should be imposed by the Commission for the protection of investors. The Commission, based on the information submitted to it, will issue an order granting the application after the date mentioned above, unless the Commission determines to order a hearing on the matter.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Amex Rule 126(g), Commentary .02 to provide that orders of 5,000 shares or more for the account of a non-member organization may be crossed at a price at or within the bid or offer without being broken up by a specialist or Registered Trader at the cross price. The text of the proposed rule is below. Proposed new language is in
.02 When a member has an order to buy and an order to sell an equivalent amount of the same security, and both orders are of 5,000 shares or more and are for the accounts of persons who are not members or member organizations, the member may “cross” those orders at a price at or within the prevailing quotation. The member's bid or offer shall be entitled to priority at such cross price, irrespective of pre-existing bids or offers at that price. The member shall follow the crossing procedures of Rule 151, and another member may trade with either the bid or offer side of the cross transaction only to provide a price which is better than the cross price as to all or part of such bid or offer. A member who is providing a better price to one side of the cross transaction must trade with all other market interest having priority at that price before trading with any part of the cross transaction. No member may break up the proposed cross transaction, in whole or in part, at the cross price.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Amex Rule 126 (Precedence of Bids and Offers) sets out rules governing priority and precedence of bids and offers on the Exchange Floor, and generally provides that bids and offers are entitled to precedence based on time, with a member bidding at the highest price (offering at the lowest price) entitled to priority, and members simultaneously bidding at the highest price (offering at the lowest price) entitled to be on parity and divide executions at their price after a previous sale removes all bids and offers from the Floor. Commentary .02 to Amex Rule 126(g) applies only to agency (that is, both orders for accounts of non-members) crosses (referred to herein as “clean crosses”) to buy and sell orders of 5,000 shares or more. This commentary provides that a member may cross those orders at a price at or within the prevailing quotation, with such orders entitled to priority at the cross price over previously entered bids and offers. When crossing these orders, the member must follow the crossing procedures of Amex Rule 151 and another member may trade with either the bid or offer side of the cross, but only to provide price improvement to all or part of the bid or offer. In addition, the member must trade with all other market interest having time priority at that price before trading with any part of the cross transaction.
The Exchange implemented Commentary .02 to facilitate execution of block size crosses on the Amex. In implementing this exception to the Exchange's rules of precedence, and, in reducing minimum share size required to permit a clean cross from 25,000 to 5,000 shares, the Exchange was responding competitively to regional exchanges that were attracting Amex orders because orders to cross are not readily broken up by other trading interest in those markets, which may lack a trading crowd or limit orders on specialists' books.
A member currently is not permitted to break up a proposed clean agency cross at the cross price, but may trade with the bid or offer side to provide price improvement to all or part of the bid or offer. The Exchange proposes to amend Amex Rule 126(g), Commentary .02 to provide that orders of 5,000 shares or more for the account of a non-member or member organization may be crossed at a price at or within the bid or offer without being broken up by a specialist or Registered Trader acting as principal. The proposed rule would still enable members representing agency orders to break up the cross to provide price improvement to all or part of the bid or offer. The purpose of the rule is to continue to reduce the amount of crossing activity lost to regional exchanges or the third market. Because clean crosses are required under Amex Rule 151 to be effected at the minimum price variation, since the advent of decimal pricing, it is possible for the
Amex clean cross procedures will continue to preserve auction market principles by providing the possibility of price improvement (because members must follow Amex Rule 151 crossing procedures), and by requiring that members trade with other market interest having time priority at that price before trading with any part of the cross transaction. In addition, the Exchange believes the proposal will enhance competition among markets in the execution of agency crosses.
The Exchange believes the proposed rule change is consistent with Section 6(b)
The Exchange does not believe that the proposed rule change will impose any burden on competition.
No written comments were solicited or received with respect to the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the Amex. All submissions should refer to file number SR-Amex-2002-89 and should be submitted by January 28, 2003.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On July 24, 2002, the National Association of Securities Dealers, Inc. (“NASD”or “Association”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities and Exchange Act of 1934 (“Act”)
The Commission received 13 comment letters on the proposed rule change.
The Commission received 13 comment letters on the proposed rule change, all in opposition to the proposal.
Many commenters objected to the proposal because they believe the proposed fees are not limited to recovery of costs for services performed by the NASD.
Commenters objected to the proposal because they believe the NASD will be charging its members who have dual memberships for regulatory services in relation to transactions in covered securities (as defined in the proposals) that are effected on other markets.
In its response to the commenters, the NASD focused only on comments made in connection with the instant proposed rule change.
With regard to the commenters' concerns that there is no clear nexus between the NASD's proposed fees and the NASD's regulatory services provided, the NASD explained that most of the commenters objected to including commodities in the GIA.
Finally, with regard to the concern that commenters are unable to comment meaningfully on the proposal because of the lack of specifics on the trading activity fee in SR-NASD-2002-98, the NASD states that it has since established and published the trading activity fee rates. Furthermore, the trading activity fee portion of the NASD's proposed fee restructuring proposal is now subject to full notice and comment.
The Commission has reviewed carefully the proposed rule change, the comment letters, and the NASD's response to the comments, and finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities association
The Commission recognizes the difficulties inherent in restructuring the NASD's regulatory fees, and believes that the NASD has made a good faith effort to do so in a manner that is fair and reasonable. The Commission also notes that the NASD has indicated it will examine the fees periodically, and will adjust the fees accordingly in an effort to keep the fees at a level that is revenue neutral to the NASD.
While some commenters believe there is no clear nexus between the NASD's proposed fees and the regulatory services the NASD provides, the Commission believes that the NASD had adequately addressed this concern. The Commission believes that both the overall business activity of a firm and the level of transactions a firm handles are reflected in the cost of the NASD's regulatory services. If the fee were based on either measure alone firms whose business is predominantly reflected in one or the other measure would subsidize the operations of other firms. Furthermore, the NASD, as a registered national securities association, has a wide-ranging responsibility for overseeing the just and equitable conduct of its members, as well as its members' financial condition, no matter what activities its members choose to conduct through the broker-dealer. The Commission is satisfied that the NASD's proposed GIA is reasonably tailored to apportion fees based on the regulatory services the NASD provides. Additionally, the Commission agrees that the NASD's decision to reinstate the exclusion for commodities income in the GIA should substantially satisfy the commenters who expressed dissatisfaction with this aspect of the proposal.
With regard to the commenters' concern that approval of the NASD's proposed fee restructuring may set a precedent whereby other markets may institute fees similar to the NASD's fees, the Commission notes that any fee proposal filed with the Commission must meet the statutory standard established in section 15A(b))5) of the Act.
The Commission believes that the NASD has been responsive to the commenters' concerns that more time and information is necessary to evaluate the NASD's tandem proposed rule changes to restructure its regulatory fees. With the filing of SR-NASD-2002-147 and SR-NASD-2002-148, the NASD has provided the public with further opportunity to evaluate its proposed regulatory fee restructuring.
With regard to all other issues raised by the commenters, the Commission is satisfied that the NASD has adequately and accurately addressed the commenters' concerns.
The Commission finds good cause for approving proposed Amendment No. 2 before the 30th day after the date of publication of notice of filing thereof in the
Interested persons are invited to submit written data, views and arguments concerning Amendment No. 2, including whether Amendment No. 2 is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to Amendment No. 2 that are filed with the Commission, and all written communications relating to Amendment No. 2 between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the NASD. All submissions should refer to file number SR-NASD-2002-99 and should be submitted by January 28, 2003.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Nasdaq is proposing to amend its rules regarding non-refundable application fees, listing fees for rights, and SmallCap entry and annual listing fees. Below is the text of the proposed rule change. Proposed new language is
4510. The Nasdaq National Market
(a) Entry Fee
(1) [When a]
Up to 30 million shares—$100,000.
30+ to 50 million shares—$125,000.
Over 50 million shares—$150,000.
(2) [When a]
Up to 3 million shares—$50,000.
3+ to 5 million shares—$75,000.
5+ to 30 million shares—$100,000.
30+ to 50 million shares—$125,000.
Over 50 million shares—$150,000.
(3) No change
(4)
([4]
([5]
(b)-(d) No change
4520. The Nasdaq SmallCap Market
(a) Entry Fee
(1) [When a]
Up to [1 million shares—$9,500.
1+ to] 5 million shares—$[19,000]
5+ to 10 million shares—$[30,875]
10+ to 15 million shares—$[40,375]
Over 15 million shares—$[47,500]
(2) [When a]
(3) The Board of Directors of The Nasdaq Stock Market, Inc. or its designee may, in its discretion, defer or waive all or any part of the entry fee prescribed herein.
(4) Total shares outstanding means the aggregate of all classes of equity securities to be included in The Nasdaq SmallCap Market as shown in the issuer's most recent periodic report or in more recent information held by Nasdaq or, in the case of new issues, as shown in the offering circular, required to be
(5) A
(b) No change
(c) Annual Fee
(1) The issuer of a class of securities that is a domestic or foreign issue, including American Depositary Receipts (ADRs), listed in The Nasdaq SmallCap Market shall pay to The Nasdaq Stock Market, Inc. an annual fee to be computed as follows:
(A) $[8,000]
(B)
(C) $2,000 for each additional issue.
(D)
In its filing with the Commission, Nasdaq included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item III below. Nasdaq has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to amend Nasdaq rules regarding non-refundable application fees, listing fees for rights, and SmallCap entry and annual listing fees. Nasdaq proposes that these changes be effective as of January 1, 2003. Nasdaq also proposes that the proposed fees be applied to all issuers listed as of that date, and all new listings entering Nasdaq on or after that date. Pursuant to NASD Rule 4520 (“The Nasdaq SmallCap Market”), SmallCap entry fees would increase from a range of $9,500 to $47,000, to a range of $25,000 to $50,000, depending on the total shares outstanding in the issue. Nasdaq SmallCap annual fees would increase from $8,000 for the first issue, to a range from $15,000 to $16,000, depending on the total shares outstanding in the issue. Nasdaq is undertaking this increase to cover costs associated with the operation of the SmallCap market. In particular, Nasdaq has continued to invest in market services and initiatives such as the launch of SuperMontage
Nasdaq also proposes to: (1) Provide transparency to the entry fee for rights; (2) change the date of the assessment of entry fees from the date of application to the date of listing; and (3) increase the non-refundable portion of the listing fee from $1,000 to $5,000 for both the Nasdaq National Market and the Nasdaq SmallCap Market.
With respect to the entry fee for rights, Nasdaq rules do not currently distinguish between rights and regular equities. As such, applications for the inclusion of any class of rights are subject to the same entry fees as those for regular equities. Nasdaq has traditionally waived all but $1,000 of the entry fees for rights because Nasdaq believes that it would be inequitable to charge the same entry fees for rights and regular equities, as rights are short-term in nature and usually expire in 30 to 60 days. Therefore, Nasdaq is proposing to codify a separate non-refundable entry fee of $1,000 for the inclusion of any class of rights to provide transparency to this policy.
Nasdaq is also proposing to revise the assessment date for entry fees from the date that an issuer submits a listing application to the date that an issuer is listed. Currently, Nasdaq currently assesses entry fees based on the date that an issuer submits its application. Because an issuer is billed for entry fees at the time that it is listed, however, Nasdaq staff must review the fee schedule that was in effect at the time that the issuer submitted its listing application in order to determine the appropriate entry fees that are due. Nasdaq believes that revising the assessment date for entry fees to the date that an issuer is listed will make it much easier for Nasdaq staff, as well as issuers, to determine the proper fees for the listing of a class of securities; as the fees will be determined by the fee schedule in effect at the time of billing.
Lastly, Nasdaq proposes to increase the non-refundable portion of the listing fee from $1,000 to $5,000. Currently, when an issuer submits an application for inclusion on Nasdaq, it must pay a one-time fee of $5,000, which includes a $1,000 non-refundable processing fee. Nasdaq is proposing to increase the non-refundable processing fee from $1,000 to $5,000 in order to cover the costs associated with processing an application. Because the cost of processing a listing application is approximately $5,000, Nasdaq is unable to cover its costs in those situations where an issuer withdraws its application or is denied listing. In conjunction with this change, Nasdaq also proposes to change the term “listing fee” to “application fee.”
Nasdaq believes that the proposed rule change is consistent with the provisions of section 15A of the Act
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Written comments were neither solicited nor received.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the NASD. All submissions should refer to File No. SR-NASD-2002-183 and should be submitted by January 28, 2003.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of section 15A of the Act
The Commission also finds that the proposed rule change consistent with section 15A(b)(6) of the Act
Nasdaq seeks to implement that proposed fees on January 1, 2003. In order to facilitate the implementation of the new fee schedule and ease administration of the fees, Nasdaq has requested that the Commission find good cause to approve the proposed rule change, as amended, before the thirtieth day after the date of publication of notice in the
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The NASD proposes to extend the pilot program for the Trading Activity Fee (“TAF”) through March 1, 2003. The TAF structure as originally proposed in SR-NASD-2002-98
The text of the proposed rule change is available at the NASD and at the Commission.
In its filing with the Commission, the NASD included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Association has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
On July 24, 2002, the NASD filed SR-NASD-2002-98, which proposed a new member regulatory pricing structure.
The NASD has determined not to revert to the previous pricing structure established in Section 8 of Schedule A of the NASD By-Laws, but rather to extend the TAF pilot program in order to maintain the status quo and to allow the Commission more time to review issues presented by the TAF proposed rule change. Accordingly, the NASD filed the instant proposed rule change to extend the TAF structure pilot program through March 1, 2003. The NASD proposes no other changes to the pilot, other than to extend its operation through March 1, 2003.
The NASD believes that the proposed rule change is consistent with the Act, including Section 15A(b)(5) of the Act,
The NASD does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended.
Written comments on this proposed rule change were neither solicited nor received. Written comments have been solicited on SR-NASD-2002-98, SR-NASD-2002-147 and SR-NASD-2002-148. These comments are not addressed herein, but are, as appropriate, discussed in connection with the respective rule filings.
Because the foregoing proposed rule change does not:
(i) Significantly affect the protection of investors or the public interest;
(ii) Impose any significant burden on competition; and
(iii) Become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
The NASD has requested that the Commission waive the five-day pre-filing notice requirement and the 30-day operative delay. The Commission believes waiving the five-day pre-filing notice requirement and the 30-day operative delay is consistent with the protection of investors and the public interest. In particular, acceleration of the operative date will allow the pilot to operate without interruption. For these reasons, the Commission designates the proposal to be effective and operative upon filing with the Commission.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the Association. All submissions should refer to file number SR-NASD-2002-182 and should be submitted by January 28, 2003.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Exchange Act”),
The Commission is publishing this notice to solicit comments on the proposed rule changes from interested persons.
The SROs propose to amend their rules to address research analyst conflicts of interest. NYSE filed with the Commission proposed amendments to Rule 472 (“Communications with the Public”). The proposed amendments expand upon recently approved amendments to Rule 472
Proposed amendments to Rule 351 (“Reporting Requirements”), will require members and member organizations to document the basis and approval of a research analyst's compensation as required by Rule 472(h)(2) and include it in the annual written attestation that they are required to submit to the Exchange.
Proposed amendments to Rule 344 (“Supervisory Analysts”), will require a new registration category and qualification examination for research analysts. Proposed amendments to Rule 345A (“Continuing Education for Registered Persons”), will include research analysts and supervisory analysts as covered persons subject to the Firm Element of the Continuing Education Program to address applicable rules, regulations, ethics and professional responsibility.
NASD filed with the Commission proposed amendments to NASD Rules 1120 and 2711, and a proposed rule change to create a new NASD Rule 1050, to expand upon recently approved rules that govern research analyst conflicts of interest.
Below is the text of the proposed rule changes. Proposed new language is in
(a)(1) Each advertisement, market letter, sales literature or other similar type of communication which is generally distributed or made available by a member or member organization to customers or the public must be approved in advance by a member, allied member, supervisory analyst, or qualified person designated under the provisions of Rule 342(b)(1).
(2) Research reports must be [prepared or] approved, in advance, by a supervisory analyst acceptable to the Exchange under the provisions of Rule 344. Where a supervisory analyst does not have technical expertise in a particular product area, the basic analysis contained in such report may be co-approved by a product specialist designated by the organization. In the event that the member organization has no principal or employee qualified with the Exchange to approve such material, it must be approved by a qualified supervisory analyst in another member organization by arrangement between the two member organizations.
(b)(1) Research Department personnel or any associated person(s) engaged in the preparation of research reports may not be subject to the supervision or control of the Investment Banking Department of the member or member organization. Research reports may not be subject to review or approval prior to distribution by the Investment Banking Department.
(2) Investment Banking personnel may check research reports prior to distribution only to verify the accuracy of information and to identify or to review for any potential conflicts of interest that may exist, provided that:
(i) Any such written communication concerning the accuracy of research reports between the Investment Banking and Research Departments must be made either through the Legal or Compliance Department or in a transmission copied to Legal or Compliance; and
(ii) Any such oral communication concerning the accuracy of research reports between the Investment Banking and Research Departments must be documented and made either with Legal or Compliance personnel acting as intermediary or in a conversation conducted in the presence of Legal or Compliance personnel.
(3) A member or member organization may not submit a research report to the subject company prior to distribution, except for the review of sections of a draft of the research report solely to verify facts. Members and member organizations may not, under any circumstances, provide the subject company sections of research reports
(i) Prior to submitting any sections of the research report to the subject company, the Research Department must provide a complete draft of the research report to the Legal or Compliance Department.
(ii) If after submission to the subject company, the Research Department intends to change the proposed rating or price target, the Research Department must provide written justification to, and receive prior written authorization from, the Legal or Compliance Department for any change. The Legal or Compliance Department must retain copies of any drafts and changes thereto of the research reports provided to the subject company.
(iii) The member or member organization may not notify a subject company that a rating will be changed until after the close of trading in the principal market of the subject company one business day prior to the announcement of the change.
(c) Each member and member organization must establish written procedures reasonably designed to ensure that members, member organizations and their associated persons are in compliance with this Rule (see Rule 351(f)
(d) Communications with the public prepared or issued by a member or member organization must be retained in accordance with Rule 440 (“Books and Records”). The names of the persons who prepared and who reviewed and approved the material must be ascertainable from the retained records and the records retained must be readily available to the Exchange, upon request.
(e)(1) No associated person or member of the associated person's household may purchase or receive an issuer's securities prior to its initial public offering (
(2) No associated person or member of the associated person's household may trade in any recommended subject company's securities or derivatives of such securities for a period of thirty (30) calendar days prior to and five (5) calendar days after the member's or member organization's issuance of research reports concerning such security or a change in rating or price target of a subject company's securities.
(3) No associated person or member of the associated person's household may effect trades contrary to the member's or member organization's most current recommendations (
(4) The following are exceptions to the prohibitions contained in paragraphs (1), (2), and (3):
(i) Transactions by associated persons and household members that have been pre-approved in writing by the Legal or Compliance Department that are made due to an unanticipated significant change in their personal financial circumstances;
(ii) A member or member organization may permit the issuance of research reports or permit a change to the rating or price target on a subject company, regardless of whether an associated person and/or household members traded the subject company's securities or derivatives of such securities, within the thirty (30) calendar day period described in paragraph (e)(2), when the issuance of such research reports, or change in such rating or price target is attributable to some significant news or events regarding the subject company, provided that the issuance of such research reports, or change in rating or price target on such subject company has been pre-approved in writing by the Legal or Compliance Department;
(iii) Sale transactions by an associated person and/or household member who is new to the member or member organization within thirty (30) calendar days of such associated person's employment with the member or member organization when such associated person and/or household member had previously purchased such security or derivatives of such security prior to the associated person's employment with the member or member organization;
(iv) Sale transactions by an associated person and/or household member within thirty (30) calendar days from the date of the member's or member organization's issuance of research reports or changes to the rating or price target on a subject company when such associated person and/or household member had previously purchased the subject company's securities or derivatives of such securities prior to initiation of coverage of the subject company by the associated person;
(v) Transactions in accounts not controlled by the associated person and for investment funds in which an associated person or household member participates as a passive investor, provided the interest of the associated person or household member in the assets of the fund does not exceed 1% of the fund's assets, and the fund does not invest more than 20% of its assets in securities of issuers principally engaged in the same types of business as companies (or in the same industry classification) which the associated person usually covers in research reports. If an investment fund distributes securities in kind to an associated person before the issuer's initial public offering, the associated person must either divest those securities immediately or refrain from participating in the preparation of research reports concerning that issuer;
(vi) Transactions in a registered diversified investment company as defined under Section 5(b)(1) of the Investment Company Act of 1940.
(f)(1) A member or member organization may not issue research reports regarding an issuer
(2) A member or member organization may not issue research reports regarding an issuer
(3) A member or member organization may permit exceptions to the prohibitions in paragraphs (f)(1) and (2) (consistent with other securities laws and rules) for research reports that are issued due to significant news or events, provided that such research reports are pre-approved in writing by the
(g) No member or member organization may directly or indirectly offer a favorable research rating or specific price target, or offer to change a rating or price target, to a subject company as consideration or inducement for the receipt of business or for compensation.
(h)(
(2)
i.
ii.
iii.
(i) No change
(j) No change (except for deletion of .40(2)).
(i) A member or member organization must disclose in research reports and an associated person must disclose in public appearances:
a. If, as of the last day of the month before the publication or appearance (or the end of the second most recent month if the publication or appearance is less than ten (10) calendar days after the end of the most recent month), the member or member organization or its affiliates beneficially own 1% or more of any class of common equity securities of the subject company. The member or member organization must make the required beneficial ownership computation no later than ten (10) calendar days after the end of the prior month. Computation of beneficial ownership of securities must be based upon the same standards used to compute ownership for purposes of the reporting requirements under Section 13(d) of the Securities Exchange Act of 1934,
b. If the associated person or a household member has a financial interest in the securities of the subject company,
c. Any other actual, material conflict of interest of the member or member organization, which the associated person knows, or has reason to know, at the time the research report is issued or at the time the public appearance is made.
(ii) A member or member organization must disclose in research reports if the member or member organization or its affiliates: a) Has managed or co-managed a public offering of equity securities for the subject company in the past twelve (12) months; b) has received compensation for investment banking services from the subject company in the past twelve (12) months; or c) expects to receive or intends to seek compensation for investment banking
When an associated person recommends securities in a public appearance, the associated person must disclose if the subject company is an investment banking services client of the member, member organization, or one of its affiliates; when the associated person knows or has reason to know of this relationship.
(iii) A member or member organization must disclose in research reports, and an associated person must disclose in public appearances, whether the associated person or member of the associated person's household is an officer, director or advisory board member of the recommended issuer.
The front page of a research report either must include the disclosures required under this Rule or must refer the reader to the page(s) on which each such disclosure is found. Disclosures, and references to disclosures, must be clear, comprehensive and prominent.
A member or member organization must disclose in research reports if the associated person preparing such reports received compensation that is based upon (among other factors) the member's or member organization's overall investment banking revenues.
A member or member organization must disclose in research reports that recommend securities:
(i) If it is making a market in the subject company's securities at the time the research report is issued.
(i) The valuation methods used, and any price objectives must have a reasonable basis and include a discussion of risks.
(iii) The meanings of all ratings used by the member or member organization in its ratings system. (For example, a member or member organization might disclose that a “strong buy” rating means that the rated security's price is expected to appreciate at least 10% faster than other securities in its sector over the next 12-month period). Definitions of ratings terms also must be consistent with their plain meaning. Therefore, for example, a “hold” rating should not mean or imply that an investor should sell a security.
(iv) The percentage of all securities that the member or member organization recommends an investor “buy,” “hold,” or “sell.” Within each of the three categories, a member or member organization must also disclose the percentage of subject companies that are investment banking services clients of the member or member organization within the previous twelve (12) months. (See Rule 472.70 for further information.).
(v) A chart that depicts the price of the subject company's stock over time and indicates points at which a member or member organization assigned or changed a rating or price target. This provision would apply only to securities that have been assigned a rating for at least one year, and need not extend more than three years prior to the date of the research report. The information in the price chart must be current as of the end of the most recent calendar quarter (or the second most recent calendar quarter if the publication date is less than fifteen (15) calendar days after the most recent calendar quarter).
When a member or member organization distributes a research report covering six (6) or more subject companies for purposes of the disclosures required in paragraph (k) of this Rule, such research report may direct the reader in a clear and prominent manner as to where they may obtain applicable current disclosures in written or electronic format.
(1) Communication—The term “Communication” is deemed to include, but is not limited to, advertisements, market letters, research reports, sales literature, electronic communications, communications in and with the press and wires and memoranda to branch offices or correspondent firms which are shown or distributed to customers or the public.
(2) Research Report—“Research report” is generally defined as a written or electronic communication which includes an analysis of equity securities of individual companies or industries, and provides information reasonably sufficient upon which to base an investment decision. [and includes a recommendation].
For purposes of approval by a supervisory analyst pursuant to Rule 472(a)(2), research report includes, but is not limited to, reports which recommend equity securities, derivatives of such securities, including options, debt and other types of fixed income securities, single stock futures products, and other investment vehicles subject to market risk.
(3) Advertisement—“Advertisement” is defined to include, but is not limited to, any sales communications that is published, or designed for use in any print, electronic or other public media such as newspapers, periodicals, magazines, radio, television, telephone recording, web sites, motion pictures, audio or video device, telecommunications device, billboards or signs.
(4) Market letters—“Market letters” are defined as, but are not limited to, any written comments on market conditions, individual securities, or other investment vehicles
(5) Sales literature—“Sales literature” is defined as, but is not limited to, written or electronic communications including, but not limited to, telemarketing scripts, performance reports or summaries, form letters, seminar texts, and press releases discussing or promoting the products, services and facilities offered by a member or member organization, the role of investment in an individual's overall financial plan, or other material calling attention to any other communication.
.20 For purposes of this Rule, “investment banking services” includes, without limitation, acting as an underwriter in an offering for the issuer; acting as a financial adviser in a merger or acquisition; providing venture capital, equity lines of credit, PIPEs (private investment, public equity transaction), or similar investments; or serving as placement agent for the issuer.
.30 For purposes of this Rule, the term “Investment Banking Department” means any department or division of the member or member organization, whether or not identified as such, that performs any investment banking services on behalf of the member or member organization.
.40 For purposes of this Rule, the term “associated person” includes a member, allied member, or employee of a member or member organization responsible for, and any person who reports directly or indirectly to such associated person in connection with
.50 For purposes of this Rule, the term “public appearance” includes, without limitation, participation in a seminar, forum (including an interactive electronic forum), radio
.60 For purposes of this Rule, “subject company” is the company whose equity securities are the subject of research reports.
.70 For purposes of Rule 472(k)(2)(iv), a member or member organization must determine, based on its own ratings system, into which of the three categories each of their securities ratings utilized falls. This information must be current as of the end of the most recent calendar quarter (or the second most recent calendar quarter if the publication date is less than fifteen (15) calendar days after the most recent calendar quarter). For example, a research report might disclose that the member or member organization has assigned a “buy” rating to 58% of the securities that it follows, a “hold” rating to 15%, and a “sell” rating to 27%.
Rule 472(k)(2)(iv) requires members or member organizations to disclose the percentage of companies that are investment banking services clients for each of the three ratings categories within the previous twelve (12) months. For example, if 20 of the 25 companies to which a member or member organization has assigned a “buy” rating are investment banking clients of the member or member organization, the member or member organization would have to disclose that 80% of the companies that received a “buy” rating are its investment banking clients. Such disclosure must be made for the “buy,” “hold” and “sell” ratings categories as appropriate.
.80 For purposes of this Rule, the term “Legal or Compliance Department” also includes, but is not limited to, any department of the member or member organization which performs a similar function.
.90 For purposes of Rule 472(a), a qualified person is one who has passed an examination acceptable to the Exchange.
.100 For purposes of this Rule, the term “initial public offering” refers to the initial registered equity security offering by an issuer, regardless of whether such issuer is subject to the reporting requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, prior to the time of the filing of such issuer's registration statement.
.110 For purposes of this Rule, a secondary offering shall include a registered follow-on offering by an issuer or a registered offering by persons other than the issuer involving the distribution of securities subject to Regulation M of the Securities Exchange Act of 1934.
(a)-(e) No change.
(f) Each member and member organization that prepares, issues or distributes [communications to the public, (including but not limited to,] research reports
.11 For purposes of Rule 351(f), the attestation must be submitted by April 1 of each year.
.12 The term “research report” is defined in Rule 472.10
Rule 344.
[Supervisory analysts required under Rule 472 shall be acceptable to, and approved by, the Exchange.]
(1) Present evidence of appropriate experience and pass an Exchange Supervisory Analysts Examination.
(2) Present evidence of appropriate experience and successful completion of a specified level of the Chartered Financial Analysts Examination prescribed by the Exchange and pass only that portion of the Exchange Supervisory Analysts Examination dealing with Exchange rules on research standards and related matters.
[In addition, if not a member, allied member or registered representative, the candidate is subject to Exchange investigation of character and conduct and should submit personal information on Form U-4 for this purpose.]
The Exchange publishes a Study Outline for the
Rule 345A.(a) Regulatory Element—No change.
(1) Persons Subject to the Firm Element—The requirements of Section (b) of this Rule shall apply to any registered person who has direct contact with customers in the conduct of the member's or member organization's securities sales, trading or investment banking activities, and to the immediate supervisors of such persons
(2) Standards—No Change.
(3) Participation in the Firm Element—No Change.
(4) Specific Training Requirements—The Exchange may require a member or member organization, either individually or as part of a larger group, to provide specific training to its covered registered persons in such areas the Exchange deems appropriate. Such a requirement may stipulate the class of covered registered persons for which it is applicable, the time period in which the requirement must be satisfied and, where appropriate, the actual training content.
.10 For purposes of this Rule, the term “registered person” means any member, allied member, registered representative or other person registered or required to be registered under Exchange rules, but does not include any such person whose activities are limited solely to the transaction of business on the Floor with members or registered broker-dealers.
.20-.40 No Change.
The Exchange is requesting the following implementation schedule for the proposed amendments (all time periods are from the date that the Commission approves the filing) in order to provide reasonable time periods for members and member organizations to develop and implement policies, procedures and systems to comply with the new requirements:
• NYSE Rule 345A(b) and .50—Implementation of a Firm Element Continuing Education Program for Research Analysts—90 calendar days.
• All other provisions—60 calendar days.
In addition, the Exchange is proposing an effective date of 180 days after approval of the amendments to NYSE Rule 344.10 to provide sufficient time for the Exchange to develop and implement a qualification examination for research analysts.
This Rule prescribes requirements regarding the continuing education of certain registered persons subsequent to their initial qualification and registration with the Association. The requirements shall consist of a Regulatory Element and a Firm Element as set forth below.
(1)-(4) (No change.)
For purposes of this Rule, the term “registered person” means any person registered with [the Association]
(6) (No change.)
The requirements of this subparagraph shall apply to any person registered with the member who has direct contact with customers in the conduct of the member's securities sales, trading and investment banking activities, and to the immediate supervisors of such persons,
(A) (No change.)
(B) Minimum Standards for Training Programs—Programs used to implement a member's training plan must be appropriate for the business of the member and, at a minimum must cover the following matters concerning securities products, services, and strategies offered by the member:
(i) General investment features and associated risk factors;
(ii) Suitability and sales practice considerations; [and]
(iii) Applicable regulatory requirements[.]
(3)-(4) (No change.)
For purposes of this rule, the following terms shall be defined as provided.
(1)-(3) (No change.)
(4) “Public appearance” means any participation in a seminar, forum (including an interactive electronic forum), radio, [or] television
(5) “Research analyst” means the associated person who is principally responsible for, and any associated person who reports directly or indirectly to such a research analyst in connection with, preparation of the substance of a research report, whether or not any such person has the job title of “research analyst.”
(6)-(7) (No change.)
(8) “Research report” means a written or electronic communication which includes an analysis of equity securities or individual companies or industries, and which provides information reasonably sufficient upon which to base an investment decision [and includes a recommendation].
(9) (No change.)
(b) (No change.)
(1)-(3) (No change.)
(A)
(B)
(C)
(e) (No change.)
[(1)]
[(2)]
[(A)]
[(B)]
(g)-(i) (No change.)
In their filings with the Commission, the NYSE and NASD included statements concerning the purpose of and basis for the proposed rule changes. The text of these statements may be examined at the places specified in Item IV below. The NYSE and NASD have prepared summaries, set forth in Sections A, B, and C below.
NYSE believes that allegations regarding improprieties in solicitation of investment banking business impugn the objectivity and integrity of research analysts and the reports they prepare and have continued to undermine investor confidence in the equity markets. According to the NYSE, in discharging their duties as SROs, the NYSE and NASD have been proactive in this regard and have passed sweeping changes, described below, to their rules governing research analysts, their member organizations and their communications with the public. The proposed amendments described below are a continuation of this process to restore integrity to the public equity markets.
On May 10, 2002, the SEC approved amendments to Exchange Rules 472 and 351 which significantly changed the manner in which members and member organizations, their investment-banking departments and their research analysts manage and disclose conflicts of interest between their investment banking and research activities. The SEC also
The rule amendments generally restrict the relationship between research and investment banking departments and the companies that are the subject of research reports; require disclosure of a financial interest in a subject company by an analyst or a member or member organization; require disclosure of existing and potential investment banking relationships with a subject company; impose quiet periods for the issuance of research reports following the completion of a company's securities offering; restrict personal trading by research analysts in the stock of the companies covered by such analysts; and generally require extensive disclosure in research reports of certain important information to help customers monitor the correlation between an analyst's rating and the stock's price movements.
The rule amendments have been phased-in incrementally to provide members and member organizations time to develop and implement policies, procedures and systems and hire additional personnel to comply with the new requirements. The staggered implementation of the Rules began July 9, 2002, with September 9, 2002 and November 6, 2002 as the effective dates for certain specified provisions. Implementation dates for certain of the SRO rules have also been delayed for small firms. As a result of numerous interpretive requests, on June 26, 2002, the Exchange and the NASD issued a Joint Memo providing interpretive guidance to certain rule provisions.
According to NYSE, the Exchange, together with other regulatory organizations and SROs, is currently examining members' and member organizations' research practices to determine compliance with the new SRO Rules.
According to the NYSE, some of the interpretive issues raised by the industry and the preliminary findings from the recent examinations have highlighted the need for certain additional changes to the existing SRO Rules. NYSE believes that further amendments to the SRO rules will also be required to comply with the mandate of the Sarbanes-Oxley Act of 2002 (“SOA”), which requires the SEC, either directly or indirectly through SROs, to adopt not later than one year after the date of enactment of the Act (July 24, 2002), “rules reasonably designed to address conflicts of interest that can arise when securities analysts recommend equity securities in research reports and public appearances, in order to improve the objectivity of research and provide investors with more useful and reliable information.”
According to the NYSE, certain of the disclosure requirements and prohibitions that the SOA mandates have already been adopted in the new NYSE Rules. In some cases, the SOA appears to impose more stringent requirements. The NYSE is currently analyzing the differences between the SOA and NYSE Rules, to determine the extent of additional amendments to be made.
The following proposed amendments to Exchange rules governing communications with the public expand upon the recently approved rule changes. The amendments generally provide for further restrictions on research analysts' compensation and trading activities, and impose additional disclosure requirements for research reports and associated persons.
Proposed amendments to Rule 472 would further separate an analyst's compensation from investment banking influence by requiring procedures for review and approval of research analysts' compensation by a Committee that reports to the Board of Directors or a senior executive. Recently approved amendments prohibit an associated person from being compensated for specific investment services transactions.
Such a Committee, at a minimum, would consider the following factors: the associated person's individual performance (
Further, in determining an individual research analyst's compensation, the Committee may not consider his or her contribution to the firm's overall investment banking business. The basis for a research analyst's compensation would have to be documented and an annual attestation to the Exchange would certify that the Committee reviewed and approved each associated person's compensation and documented the basis for such approval (Rule 472(h)(1) and (2)).
Proposed Rule 472(b)(4) will prohibit a research analyst from issuing a research report or making a public appearance concerning a subject company if the research analyst engaged in any communication with the subject company in furtherance of obtaining investment banking business prior to the time the subject company entered into a letter of intent or other written agreement with the member or member organization designating the member or member rganization as an underwriter of an initial public offering by the subject company.
Due diligence communications between the research analyst and the subject company, the sole purpose of which is to analyze the financial condition and business operations of the subject company, is not subject to the prohibition. Recognizing the need for critical financial analysis of a subject company during the period an issuer is preparing to engage in a securities offering with the public, the rule allows research analysts to participate in due diligence communications. In doing so, the rule is intended to segregate legitimate research analyst duties/functions, traditionally associated with their profession, from the sales/marketing duties that they may have been called upon recently to do by their firms.
Proposed amendments to Rule 472 would prohibit the issuance of research reports by the manager or co-manager of a securities offering for fifteen (15) days prior to and after the expiration time of any “lock-up agreement” (Rule 472(f)(4)). This provision is intended to address situations where research analysts may issue positive research reports or reiterated “buy” recommendations shortly before or just after the expiration of a lock-up agreement. Through issuance or reiteration of “buy” recommendations,
Proposed amendments to Rule 472 would require notification to customers when a member or member organization terminates research coverage of a subject company and require that the final report include a final recommendation or rating
As proposed, the definition of research analyst (associated person) would be amended to include research directors, supervisory analysts and others
As proposed, the current ten (10) and forty (40) day quiet periods for research analysts' issuance of research reports by managers and co-managers of initial and secondary offerings would be extended to include public appearances (Rule 472(f)(1) and (2)). Extending the quiet periods to public appearances would preclude members and member organizations from engaging in communications through public appearances that they are otherwise prohibited from making in written communications to the same standards. NYSE believes that subjecting all types of appearances and written communications should further remove any incentives for biased research recommendations in any potential type of medium.
The definition of “public appearance” would be amended to include research analysts” making a recommendation in a newspaper article or similar public medium (Rule 472.50). Extending the definition of public appearance to recommendations in a newspaper article would require research analysts to make the same disclosures that they are required to make in other public appearances.
Proposed amendments to Rule 344 (“Supervisory Analysts”) would establish a new registration category and require a qualification examination for research analysts (Rule 344). In addition, Rule 345A (“Continuing Education for Registered Persons”) would be amended to include research analysts and supervisory analysts as covered persons subject to the Firm Element of the Continuing Education Program to address applicable rules and regulations, ethics, and professional responsibility (Rule 345A(b) and .50).
NYSE believes that research analysts as securities professionals perform vital functions for their members or member organizations in the public equity markets. As such, they should be subject to the highest ethical and professional competency standards. Accordingly, NYSE believes that establishing a new registration category with a corresponding qualifying examination will raise such standards. Further, including research and supervisory analysts as covered persons in the Firm Element component of Continuing Education Programs would place an obligation on members and member organizations to ensure that they are receiving the requisite ethics and professional responsibility training that NYSE believes they will require to properly conduct their duties as research analysts.
The Exchange is making certain clarifying amendments to Rule 472 that would make it more uniform with the NASD rule and would bring it into conformity with certain of the new requirements of the Act.
Rule 472 is being amended to require that the nature of a research analyst's financial interest in a subject company's securities be disclosed in research reports and public appearances, including whether the interest consists of any option, right, warrant, futures contract, or long or short position, etc. This would make NASD and NYSE rule texts consistent with each other (Rule 472(k)(1)(i)(b).
Proposed amendments to Rule 472(l) with respect to specified communications activities, including, interviews with the media, writing books and newspaper/periodical articles etc., engaged in by members, allied members or employees, would clarify the approval and supervisory requirements for such activities.
As proposed, the term “research report” as it is currently defined in the Rule 472 is being amended to conform to the Act's definition by deleting the criterion of providing a recommendation from the criteria that determines what constitutes a research report (Rule 472.10(2)). NYSE believes conforming the definition to the one required by the SOA would help facilitate members' and member organizations' future compliance with the SOA in the least disruptive manner.
The NYSE believes that the proposed rule change is consistent with Section 6(b)(5) of the Exchange Act
In May 2002, the SEC approved new NASD Rule 2711 and similar amendments to existing New York Stock Exchange (“NYSE”) rules that increased the regulation of research analysts and research reports.
In June 2002, NASD and the NYSE issued a joint memorandum that provided members with the new rule language, as well as interpretive guidance on a number of Rule 2711's provisions.
According to NASD, as a result of the examinations and further discussions with the SEC staff, NASD and NYSE agreed that additional rules governing members' research activities are necessary to protect investors. This rule change proposal would effectuate those additional safeguards. Generally, the proposed amendments would further separate analyst compensation from investment banking influence, prohibit analysts from issuing “booster shot” research reports, prohibit analysts from participating in “bake-off” meetings with prospective investment banking clients, require members to publish a final research report when they terminate coverage of a subject company, impose registration, qualification and continuing education requirements on research analysts, and make certain other changes.
NASD believes that these amendments do not implement all of the changes that may be required pursuant to the research analyst provisions of the SOA. NASD anticipates filing additional proposed amendments to Rule 2711 in the future to meet the requirements of SOA after further discussions with NYSE and SEC staff.
A more detailed discussion of the proposed rule change follows.
The proposed amendments would require members to further separate analyst compensation from investment banking influence by imposing new restrictions on the manner in which research analysts may be compensated. The rule proposal would require members to employ a compensation committee that reports to the member's board of directors (or if the member does not have a board of directors, a senior executive officer of the member) responsible for reviewing and approving analyst compensation at least annually. The committee could not have representation from the member's investment banking department. In determining an analyst's compensation, the committee would have to consider, if applicable, the research analyst's individual performance, including the analyst's productivity and research quality, the correlation between the analyst's recommendations and stock price performance, and overall ratings of clients, sales force, and peers independent of the member's investment banking department. The committee could not consider the analyst's contributions to the member's investment banking business.
The committee would be required to document the basis for establishing the analyst's compensation. The member also would have to attest annually to NASD that the committee reviewed and approved each analyst's compensation and documented the basis upon which the compensation was established.
The proposed amendments would make several changes to current Rule 2711(f), which imposes “quiet periods” on members during which members may not publish research reports following an initial or secondary public offering of securities. First, the proposed amendments would extend the quiet period prohibitions to public appearances by research analysts as well as to the issuance of research reports.
Second, the proposed amendments would prohibit “booster shot” research reports or public appearances around the time of the expiration, waiver or termination of a “lock-up” agreement. Members often enter into lock-up agreements with subject companies or their shareholders that restrict or prohibit the sale of a subject company's or its shareholder's securities for a defined period after the completion of a securities offering. This provision would prohibit members from publishing a research report or making a public appearance concerning a subject company for 15 days prior to or after the expiration, waiver or termination of a lock-up agreement, thus helping prevent members from publishing favorable research that is intended to benefit the shareholders whose lock-up agreement is no longer in effect by driving up the price of the issuer's shares. However, the rule proposal includes an exception that would allow members to publish research reports during this quiet period to comment on the effect of significant news or a significant event on the subject company, provided that the legal and compliance department authorizes the publication of the report before it is issued. A similar exception exists with respect to quiet periods in the current rule.
Third, the proposed amendments would require a member that decides to terminate coverage of a subject company to publish a notice of this termination, and to publish its final rating or recommendation of the subject company's securities (assuming the member had issued a prior rating or recommendation). This provision is intended to eliminate the practice of dropping coverage of a subject company rather than lowering a rating or recommendation.
The proposed amendments would prohibit a research analyst from issuing a research report or making a public appearance concerning a subject company if the research analyst communicated with the subject company in furtherance of obtaining investment banking business before the subject company had entered into a letter of intent or other written agreement designating the member as an underwriter of an initial public offering of the subject company. This provision would not apply to due diligence communications between an analyst and a subject company where the sole purpose is to analyze the financial condition and business operations of the subject company. The purpose of this provision is to prevent research analysts from attending “bake-off” meetings or otherwise communicating with a subject company where the intention is to pitch the member's investment banking services.
The proposed amendments would create new NASD Rule 1050, which would require all persons associated with a member that function as research analysts to register with NASD. For purposes of Rule 1050, “research analyst” would be defined as any associated person who is directly responsible for the preparation of
The proposed amendments would revise the definition of “research analyst” to include supervisors of research analysts, including directors of research and members of supervisory committees. The proposed expanded definition would apply only with respect to the personal trading restrictions of Rule 2711(g). NASD believes the amendment is necessary because these supervisory personnel review and often greatly influence the content of and recommendation contained in research reports and therefore should be subject to the same trading restrictions, such as the prohibition on trading against the member's recommendation. The other provisions of Rule 2711 that govern research analyst conduct and disclosures would not apply to supervisors of research analysts.
Additionally, the definition of “public appearance” would be revised to include interviews with print media and the writing of a print media article by a research analyst. In NASD's experience, the opinions and recommendations by research analysts made in the print media, specifically in opinion pieces, have created some of the same concerns as those made in radio and television appearances, which are covered by the current definition. NASD is modifying the guidance discussed in NASD's Notice to Members 02-39 concerning the making of the required disclosures in public appearances with media outlets. An analyst would not violate the rule if the analyst makes the required disclosures to the print, radio or television media in good faith, even if the media outlet does not print or broadcast the information. NASD thus recognizes the independent editorial discretion of the print, radio and television media.
NASD believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6)
NYSE and NASD do not believe that the proposed rule changes will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act.
NYSE and NASD has neither solicited nor received written comments on the proposed rule change.
Within 35 days of the date of publication of this notice in the
A. By order approve such proposed rule change, or
B. Institute proceedings to determine whether the proposed rule change should be disapproved.
The Commission notes that the NYSE and NASD have worked together to develop these proposals. The Commission specifically requests comment on the substance of the proposals, and whether there are any differences between the NYSE and NASD proposals that present compliance or interpretive issues. The Commission also specifically seeks comment on the practicalities of making the required disclosures in print media and other public appearances. The Commission requests comment on whether the SROs should consider whether there are other effective means (including abbreviated disclosures) to alert investors of conflicts in the context of public media appearances that would take into account possible space or time limitations.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposals, as amended, are consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549-0609. Comments also may be submitted electronically to the following e-mail address:
Copies of the rule filings, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of the rule filings and amendments will also be available for inspection and copying at the principal offices of the SROs and on the SROs' respective Web sites (
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(7) of the Securities Exchange Act of 1934 (“Act”),
OneChicago is proposing to adopt rules on listing standards for security futures contracts (“Eligibility and Maintenance Criteria for Security Futures Products”) to comply with the requirements under Section 6(h)(3) of the Act
• Reflect the modifications to the statutory listing standards requirements adopted by the Commission and the CFTC with respect to shares of exchange-traded funds, trust-issued receipts, shares of registered closed-end management investment companies, and American Depositary Receipts (“ADRs”)
• Establish an approximately equal dollar-weighting methodology for physically settled futures based on narrow-based security indices (such indices are referred to hereafter as “NBIs”), which (i) Requires the number of each component security to be rounded up or down to the nearest multiple of 100 shares or receipts in the course of the initial index composition and any subsequent rebalancing, (ii) contemplates mandatory annual rebalancing of such indices under specified circumstances, complemented by OneChicago's ability to rebalance indices on an interim basis if it so elects, and (iii) ensures that outstanding contracts will not be affected by any rebalancing.
In connection with the adoption of the OneChicago Listing Standards, OneChicago is proposing the following rule changes, which are referenced in Item II.A.1.b below, from the version of the OneChicago Rulebook filed as part of OneChicago's notice registration with the Commission on Form 1-N:
• An amendment to its Rule 213 (the “Information Sharing Rule”), to add the following text after the first sentence: “The Chief Executive Officer, or his or her delegate, is authorized to provide information to any such organization, association, board of trade or regulator that is a party to an information sharing agreement with the Exchange, in accordance with the terms and subject to the conditions set forth in such agreement.”;
• An amendment to its Rule 603 (the “Market Manipulation Rule”), to (i) remove the reference to market demoralization from the heading and (ii) replace the reference to “upsetting the equilibrium of the market in any Contract” with the words “generating unnecessary volatility”;
• An amendment to its Rule 605 (the “Sales Practice Rule”), to provide that each Clearing Member, Exchange Member (including its Related Parties) and Access Person shall comply with any and all sales practice rules from time to time promulgated by the National Futures Association (“NFA”) (in the case of any Clearing Member, Exchange Member or Access Person that is registered with the NFA) or the National Association of Securities Dealers, Inc. (“NASD”) (in the case of any other Clearing Member, Exchange Member or Access Person) with respect to security futures.
• An amendment to its Rule 610 (the “Trading Ahead Rule”) to remove the requirement that a customer's consent under such rule be in writing and indicated on each relevant order; and
• An amendment to its Rule 611 (the “Trading Against Rule”), to remove the requirement that a customer's consent under such rule be in writing and given or renewed within 12 months of the transaction at issue.
OneChicago is also filing herewith proposed Rules 403, 415, 419, 501, 601, 602, 604, 612 and 613, which remain unchanged from the Rulebook filed with the Commission as part of OneChicago's notice registration on Form 1-N.
OneChicago has prepared statements concerning the purpose of, and statutory basis for, the proposed rules, burdens on competition, and comments received from members, participants, and others. The text of these statements may be examined at the places specified in Item IV below. These statements are set forth in Sections A, B, and C below.
Section 6(h)(3) of the Act
According to OneChicago, Commission staff published SLB 15, including the Sample Listing Standards (which were derived from typical listing standards used by exchanges trading options based on securities or security indices), to provide guidance as to how an exchange can comply with the foregoing requirements, but noted that different listing standards could also be consistent with the Act.
OneChicago believes that the Sample Listing Standards, as modified by the order relating to shares of exchange-traded funds, trust-issued receipts and shares of registered closed-end management investment companies,
Unlike options on security indices currently listed on national securities exchanges, all NBI futures to be listed on OneChicago are expected to be physically settled. OneChicago believes that physical settlement will effectively reduce the basis risk related to trading in these products and lead to tighter bid-ask spreads, thereby limiting the potential for market manipulation. OneChicago believes that its decision in favor of physical settlement therefore furthers the statutory objective of avoiding price manipulation of security futures products and their underlying securities.
If the composition of NBIs were subject to frequent or retroactive changes as a result of index rebalancings, OneChicago believes that NBI futures would lose their potential as particularly useful and effective tools in the implementation of hedging, arbitrage and other investment strategies.
The Sample Listing Standards contemplate at least quarterly rebalancings of equal dollar-weighted indices. The OneChicago Listing Standards modify this requirement by providing that an approximately equal dollar-weighted NBI underlying a physically settled security futures product is to be rebalanced annually, but only if the aggregate value of the security position with the highest value is two or more times greater than the aggregate value of the security position with the lowest value in the index for a specified time period. OneChicago believes that this test adequately balances the potential adverse consequences of too frequent changes in the composition of any NBI with the objective that an NBI should be, and remain, representative of the industry segment to which it relates. OneChicago will have the ability to rebalance any NBI on an interim basis should this become necessary as a result of exceptional changes in the relative values of the component securities. As OneChicago plans to list only contracts expiring on the next two quarterly expiration dates (based on the quarterly cycle of March, June, September and December) and the nearest two serial monthly expiration dates that are not quarterly expiration dates, OneChicago will be able to phase in contracts based on a rebalanced NBI, and thereby replace contracts with open interest based on the previous NBI composition, within a short period of time.
OneChicago believes it is critical, however, that investors with open positions in contracts based on a particular NBI be able to rely on the number of shares or receipts evidencing each component security remaining unchanged for purposes of those contracts. Accordingly, the OneChicago Listing Standards clarify that outstanding contracts will not be affected by any rebalancing.
Unlike the Sample Listing Standards (and the listing standards for options on which they are based), exchange rules and other requirements applicable to a variety of financial instruments based on “narrowly-based” security indices or baskets contemplate modifications to a pure equal dollar-weighted composition methodology and/or do not require automatic periodic rebalancings. For example, OneChicago believes that the rules of the American Stock Exchange (“Amex”) for portfolio depositary receipts
The contents of the OneChicago Listing Standards, including the approximately equal dollar-weighting methodology described above, will be publicly available and fully disclosed. Finally, OneChicago believes that it is also worth noting that, despite the differences between the OneChicago Listing Standards and the Sample Listing Standards, hypothetical indices following one or the other methodology have been shown to be highly correlated.
Section 6(h)(3) of the Act
Clause (A) of Section 6(h)(3) of the Act
Clause (B) of Section 6(h)(3) of the Act
Clause (C) of Section 6(h)(3) of the Act
Clause (D) of Section 6(h)(3) of the Act
Clause (E) of Section 6(h)(3) of the Act
Clause (F) of Section 6(h)(3) of the Act
Clause (G) of Section 6(h)(3) of the Act
Clause (H) of Section 6(h)(3) of the Act
Clause (I) of Section 6(h)(3) of the Act
Clause (J) of Section 6(h)(3) of the Act
OneChicago's electronic audit trail will consist of data recorded by CBOE
For orders that cannot be immediately entered into either Chicago Board Options Exchange, Inc (“CBOE”) or CME systems, and therefore will not be recorded electronically by CBOE
Block trades will be entered in CBOE
Clause (K) of Section 6(h)(3) of the Act
Clause (L) of Section 6(h)(3) of the Act
For the reasons described above, OneChicago submits that the OneChicago Listing Standards and the proposed changes to the Information Sharing Rule, the Market Manipulation Rule, the Sales Practice Rule, the Trading Ahead Rule, the Trading Against Rule and the other proposed OneChicago rules filed herewith, satisfy the requirements set forth in Section 6(h)(3) of the Act.
One Chicago has filed these proposed rules pursuant to Section 19(b)(7) of the Act.
OneChicago does not believe that the OneChicago Listing Standards will have an impact on competition because (i) It can be expected that other self-regulatory organizations that will list security futures products will adopt substantially similar listing standards and (ii) any concerns about possible anti-competitive effects should be evaluated in light of the standards applicable to other financial instruments based on “narrowly based” security indices or baskets, which are consistent with the OneChicago Listing Standards. In addition, OneChicago does not believe that the proposed amendment to the Information Sharing Rule will have an impact on competition because such amendment deals with procedural aspects of sharing information and is not substantive. Similarly, OneChicago does not believe that the proposed amendment to the Sales Practice Rule will have an impact on competition because it is designed to reflect the fact that members of OneChicago that are registered with the NFA will be subject to the sales practice rules of such organization rather than the sales practice rules of the NASD. Finally, OneChicago does not believe that the proposed amendments to the Market Manipulation Rule, the Trading Ahead Rule or the Trading Against Rule or the other proposed rules will have an impact on competition because such amendments constitute non-substantive changes to reflect market practice in the areas to which they relate.
Comments on the OneChicago Listing Standards have not been solicited.
Pursuant to Section 19(b)(7)(B) of the Act,
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rules conflict with the Act. Persons making written submissions should file nine copies of the submission with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549-0609. Comments also may be submitted electronically to the following e-mail address:
All submissions should refer to File No. SR-OC-2002-04 and should be submitted by January 28, 2003.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
December 30, 2002.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Phlx proposes to amend its schedule of dues, fees and charges to increase the off-floor broker-dealer equity option transaction charge from $.35 per contract to $.45 per contract for orders delivered through the Phlx Automated Options Market (“AUTOM”) System, and automatically executed by the Exchange's Automatic Execution System (“AUTO-X”).
In its filing with the Commission, the Phlx included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has
The purpose of the proposed rule change is to raise revenue for the Exchange by charging a $.45 transaction charge for off-floor broker-dealer orders that are delivered via AUTOM and executed automatically via AUTO-X.
Currently, the Exchange charges a fee of $.35 per contract for all off-floor broker-dealer transactions, regardless of how such an order is executed. The $.35 charge will continue to apply to off-floor broker-dealer orders not executed by AUTO-X.
The $.35 charge for non-AUTO-X transactions and the $.45 charge for AUTO-X transactions apply to members for orders, received from other than the floor of the Exchange, for any account (i) in which the holder of beneficial interest is a member or non-member broker-dealer or (ii) in which the holder of beneficial interest is a person associated with or employed by a member or non-member broker-dealer. Accordingly, an order for the account of an ROT entered from off-floor would be subject to one of the two charges.
The Exchange believes that its proposal to amend its schedule of dues, fees and charges is consistent with Section 6(b) of the Act
The Phlx does not believe that the proposed rule change will impose any inappropriate burden on competition.
No written comments were either solicited or received.
The foregoing proposed rule change has been designated as a fee change pursuant to Section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the Phlx.
All submissions should refer to File No. SR-Phlx-2002-78 and should be submitted by January 28, 2003.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
The Department of Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 11000, 1750 Pennsylvania Avenue, NW., Washington, DC 20220.
Written comments should be received on or before February 6, 2003 to be assured of consideration.
The Department of Veterans Affairs gives notice under Public Law 92-463 (Federal Advisory Committee Act) that the Advisory Committee on Women Veterans will meet January 21-23, 2003, from 8:30 a.m. to 5 p.m. each day. The meeting will be held at the Department of Veterans Affairs, 810 Vermont Avenue, NW., Room 230, Washington, DC. The meeting is open to the public.
The purpose of the Committee is to advise the Secretary of Veterans Affairs regarding the needs of women veterans with respect to healthcare, rehabilitation, compensation, outreach, and other programs and activities administered by the VA designed to meet such needs. The Committee will make recommendations to the Secretary regarding such programs and activities.
On January 21, the agenda topics for this meeting will include briefings and updates on the Women Veterans Health Program, the National Survey of Veterans, Board of Veterans Appeals issues, legislative issues affecting women veterans, community-based outpatients clinics, and the National Women Veterans Study. On January 22, the Committee will be briefed on Committee requirements, compensation and pension benefits, VA-funded research on women veterans, the status of the VA Homeless Program and related issues that the Committee members may choose to introduce. On January 23, discussions will include briefings regarding the VA Domiciliary Programs and the 8 Comprehensive Women Veterans Health Centers. The Committee is tentatively scheduled for a briefing on Capitol Hill and from the Department of Labor, Veterans Employment and Training Service.
Any member of the public wishing to attend should contact Ms. Maryanne Carson, at the Department of Veterans Affairs, Center for Women Veterans (00W), 810 Vermont Avenue, NW., Washington, DC 20420. Ms. Carson may be contacted either by phone at (202) 273-6193, fax at (202) 273-7093 or e-mail at
By Direction of the Secretary.
Department of Veterans Affairs.
Notice.
Public Law 104-275 was enacted on October 9, 1996. It allowed the Department of Veterans Affairs (VA) to provide a monetary allowance towards the private purchase of an outer burial receptacle for use in a VA national cemetery. Under VA regulation (38 CFR 1.629), the allowance is equal to the average cost of Government-furnished graveliners minus any administrative costs to VA. The law continues to provide a veteran's survivors with the option of selecting a Government-furnished graveliner for use in a VA national cemetery where such use is authorized.
The purpose of this Notice is to notify interested parties of the average cost of Government-furnished graveliners, administrative costs that relate to processing a claim, and the amount of the allowance payable for qualifying interments that occur during calendar year 2003.
Karen Barber, Program Analyst, Legislation and Regulatory Division (402B3), National Cemetery Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420. Telephone: 202-273-5183 (this is not a toll-free number).
Under 38 U.S.C. 501(a) and Pub. L. 104-275, Section 213, VA may provide a monetary allowance for the private purchase of an outer burial receptacle for use in a VA national cemetery where its use is authorized. The allowance for qualified interments that occur during calendar year 2003 is the average cost of Government-furnished graveliners in fiscal year 2002, less the administrative costs incurred by VA in processing and paying the allowance in lieu of the Government-furnished graveliner.
The average cost of Government-furnished graveliners is determined by taking VA's total cost during a fiscal year for single-depth graveliners that were procured for placement at the time of interment and dividing it by the total number of such graveliners procured by VA during that fiscal year. The calculation excludes both graveliners procured and pre-placed in gravesites as part of cemetery gravesite development
The administrative costs incurred by VA consist of those costs that relate to processing and paying an allowance in lieu of the Government-furnished graveliner. These costs have been determined to be $9.75 for calendar year 2003.
The net allowance payable for qualifying interments occurring during calendar year 2003, therefore, is $153.15.
In notice document 02-33134 beginning on page 81 in the issue of Thursday, January 2, 2003, make the following correction:
On page 81, in the third column, in the
Environmental Protection Agency (EPA).
Final rule.
EPA is promulgating amendments to the Toxic Substances Control Act (TSCA) section 8(a) Inventory Update Rule (IUR). The IUR currently requires manufacturers (including importers) of certain chemical substances on the TSCA Chemical Substances Inventory to report data on each chemical's current production volume, site-limited status, and plant site information every 4 years. Through these IUR amendments (IURA), EPA is requiring the reporting of additional data for certain chemicals to assist EPA and others in screening potential exposures and risks resulting from industrial chemical operations and commercial and consumer uses of TSCA chemical substances. EPA is also modifying the IUR reporting and recordkeeping requirements, removing one reporting exemption and creating others, and modifying its procedures for making Confidential Business Information claims. EPA is also making certain non-substantive technical corrections.
This final rule is effective February 6, 2003. For purposes of judicial review, this rule shall be promulgated at 1 p.m. eastern daylight/standard time on January 21, 2003.
You may be affected by this action if you manufacture (defined by statute to include import) chemical substances currently subject to reporting under the Inventory Update Rule (IUR) at 40 CFR part 710 or if you manufacture inorganic chemical substances. Any use of the term “manufacture” in this document will encompass “import,” unless otherwise stated. In the past, persons that only are processors of chemical substances have not been required to comply with the requirements of 40 CFR part 710. These amendments do not change the status of processors under the regulations at 40 CFR part 710. Potentially affected categories and entities may include, but are not limited to:
Chemical manufacturers and importers currently subject to IUR reporting, and chemical manufacturers and importers of inorganic chemical substances (NAICS codes 325, 32411).
This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action applies to certain entities. To determine whether you or your business is affected by this action, you should carefully examine the applicability provisions in § 710.48 in the regulatory text. If you have any questions regarding the applicability of this action to a particular entity, consult the technical contact person listed under
1.
2.
1.
First, EPA is amending the existing IUR regulations, 40 CFR 710.28 and 710.32, which appear in the new subpart C as §§ 710.48 and 710.52, to raise the production volume basic
Second, EPA is amending 40 CFR 710.32, which appears in the new subpart C as § 710.52, to add exposure-related information to the existing reporting requirements for chemical substances covered by the IUR. Specifically, the Agency is requiring that manufacturers subject to the amended rule (“submitters”) report, in ranges: (1) The number of workers reasonably likely to be exposed to the chemical substance at the site of manufacture; (2) the physical form(s) in which the chemical substance is sent off-site; (3) the percentage of total reported production volume associated with each physical form; and (4) the maximum concentration of the chemical substance at the time it leaves the submitter's manufacturing site or, if the chemical substance is site-limited, the maximum concentration at the time it is reacted on-site to produce a different chemical substance.
Third, EPA is amending 40 CFR 710.32, which appears in the new subpart C as § 710.52, to require chemical manufacturers of chemical substances with production volumes of 300,000 lbs. or greater to report certain exposure-related information concerning the processing and use of each reportable chemical substance that is conducted at sites that receive the reportable chemical substance from the submitter site directly or indirectly (whether the recipient site(s) are controlled by the submitter site or not) (including through a broker/distributor, from a customer of the submitter, etc.). Specifically, manufacturers of these larger-production volume chemical substances will be required to report, to the extent the information is readily obtainable:
• The type of industrial processing or use operation(s) at each site, including downstream sites.
• The five-digit NAICS codes that best describe the industrial activities during the processing or use operation.
• The industrial function of each chemical substance during the processing or use operation, for each NAICS code reported.
• The percentages of the submitter's production volume used in each industrial function category.
• The number of sites where the various processing or use operations occur.
• The number of workers reasonably likely to be exposed to the chemical substance in each processing or use operation.
• The categories of commercial and consumer uses of the reportable chemical substance.
• An indication of the presence of the reportable chemical substance in or on consumer products intended for use by children.
• The percentages of the submitter's production volume associated with each commercial and consumer product category.
• The maximum concentration of the reportable chemical substance in each commercial and consumer product category.
Fourth, EPA is revoking the current full exemption from IUR reporting at 40 CFR 710.26(a) for inorganic chemical substances, and is phasing in reporting for these substances, which appears in the new subpart C as § 710.46(b)(3). For the first submission period following promulgation of IURA (i.e., the 2006 submission period), EPA is requiring partial reporting for these substances (i.e., inorganic chemical substances will not be subject to the reporting of processing and use information). In subsequent submission periods, manufacturers of an inorganic substance will be subject to full reporting (i.e., including the processing and use information reporting requirements), to the extent that they manufacture at least 300,000 lbs. of the substance at a site during a given reporting year.
Fifth, EPA is amending 40 CFR 710.26, which appears in the new subpart C as § 710.46(b)(1), to create a partial reporting exemption for certain chemical substances termed “petroleum process streams” for purposes of reporting under the IURA (i.e., these chemical substances are not subject to the reporting of processing and use information).
Sixth, EPA is providing, in 40 CFR 710.46(b)(2), a partial exemption for specific chemical substances (i.e., these chemical substances are not subject to the reporting of processing and use information) where EPA has identified that there is a low current interest in the IURA processing and use information related to the chemical. EPA has identified a list of chemicals that are covered by this partial exemption, and provides a process for revising this list over time because interest in the IURA processing and use information for a particular chemical can change.
Seventh, EPA is amending 40 CFR 710.26, which appears in the new subpart C as § 710.46(a)(4), to provide a full exemption from IUR reporting for certain forms of natural gas.
Eighth, EPA is amending 40 CFR 710.32, which appears in the new subpart C as § 710.52, to require the reporting of more specific information to assist in the accurate identification of plant sites reporting under IUR.
Ninth, EPA is amending 40 CFR 710.28, 710.32, and 710.33, which appear in the new subpart C as §§ 710.48, 710.52, and 710.53, to change the period for which reporting is required from a corporate fiscal year to a calendar year basis.
Tenth, EPA is amending 40 CFR 710.32, which appears in the new subpart C as § 710.52, to allow submitters to claim their production volume range as CBI, in addition to the existing requirement that submitters report a specific production volume number and the CBI status of that specific number. Under the IURA, some submitters may choose to assert a confidentiality claim for specific production volume information while releasing the more general production volume range as public information.
Eleventh, EPA is amending 40 CFR 710.38, which appears in the new subpart C as § 710.58, to require substantiation of plant site confidentiality claims at the time such claims are made in IUR submissions to EPA (i.e., “upfront substantiation”), in a manner similar to the upfront substantiation of chemical identity, which will continue to be required under 40 CFR 710.38, which appears in the new subpart C as § 710.58.
Finally, EPA is amending 40 CFR 710.37, which appears in the new subpart C as § 710.57, to extend the records retention period from 4 years to 5 years.
2.
Although there are no substantive changes to the provisions from existing 40 CFR part 710 that have been incorporated into the new subpart C, the Agency has made minor technical corrections to those provisions, as well as technical changes to the existing provisions that now appear in subpart A. Specifically, the Agency is correcting several typographical errors that appear in the existing 40 CFR part 710, and is making other minor non-substantive edits to that text. These technical corrections include the following. (Note wherever a change is being made to a new regulatory text provision, a regulatory text citation to the corresponding existing 40 CFR part 710 provision is provided in parentheses, e.g., § 710.59 (§ 710.39). This parenthesized citation is provided in order to identify where the new regulatory text originated.)
In accordance with plain language principles, EPA has substituted “will” or “must” for “shall.” These three terms are considered to be equivalent, and delineate requirements to be followed or met. Corrections were made in the following sections: § 710.1(d) (§ 710.1(c)); § 710.3(a) (§ 710.2(a)); § 710.3(b) (§ 710.2(b)); § 710.3(c) (§ 710.2(c)); § 710.3(d) in the definition for “Administrator” (§ 710.2(e)); § 710.3(d) in the definition for “site” (§ 710.2(w)); § 710.3(d) in the note following the definition for “small quantities for research and development” (§ 710.2(y)); and § 710.4(b)(2) (§ 710.4(b)(2)).
EPA has corrected some punctuation and spelling errors: commas were added in § 710.1(a) (§ 710.1(a)), in § 710.3(d) in the definition for “distribute in commerce” (§ 710.2(j)) and in the definition for “small quantities for research and development” and in the note following the same definition (§ 710.2(y)); commas were removed in the definition for “distribute in commerce” (§ 710.2(j)) and in the note following the definition for “distribute in commerce” (§ 710.2(y)); in § 710.3(d) “Process `for commercial purposes'” was substituted for “Process for `commercial purposes'” in the definition for “Process `for commercial purposes'” ( § 710.2(u)); in § 710.3(d) “juridical” was substituted for “juridicial” in the definition for “person” (§ 710.2(s)) and “appropriate” was substituted for “appropriated” in the definition for “technically qualified person” (§ 710.2(aa)(2)); in § 710.4(d)(2) “premanufacture” was substituted for “premanufacturing” (§ 710.4(d)(2)); and in § 710.4(d)(5) “photographic films” was substituted for “photographic, films” (§ 710.4(d)(5)).
EPA has made certain additional non-substantive changes. In § 710.3(d), EPA substituted “1,000 lbs. (454 kg)” for “1,000 pounds” in the note following the definition for “small quantities for research and development” (§ 710.2(y)). EPA has substituted “his/her” for “his” in sections where the word “his” was used: in two instances in § 710.3(d) in the definition for “Administrator” (§ 710.2(e)); in § 710.3(d) in the definition for importer (§ 710.2(l)(2)); and in § 710.3(d) in the definition for “technically qualified person” (§ 710.2(aa)).
EPA has made certain additional non-substantive changes and updated information submission information in § 710.59 by substituting “Availability of reporting form and instructions” for “How do I submit the required information for the 1998 reporting cycle?” (§ 710.39); in § 710.59(a) by substituting “http://www.epa.gov/oppt/iur” for “http://www.epa.gov/opptintr/iur98” and by removing “or Fax-on-Demand by using a faxphone to call (202) 401-0527 and selecting item 5119” as Fax-on-Demand is no longer available (§ 710.39(a)); in § 710.59(b) by substituting “Guidance for completing the reporting form and preparing an electronic (magnetic media) report will be made available prior to each submission period.” for the existing paragraph after the heading (§ 710.39(b)); in § 710.59(c) by substituting “will send” for “is mailing” and “reporting package (consisting of a copy of Form U and a copy of the reporting instructions) to those submitters that reported in the IUR submission period that occurred immediately prior to the current submission period.” for “reporting package to those companies that reported in 1994. ” (§ 710.39(c)); in § 710.59(c)(1), EPA substituted “By telephone” for “By phone” and removed “or TDD 202-554-0551” as the TDD number is no longer available (§ 710.39(c)(1)); in § 710.59(c)(2), EPA substituted “TSCA-Hotline@epa.gov” for “TSCA-Hotline@epamail.epa.gov” (§ 710.39(c)(2)); and in § 710.59(c) and (d) EPA substituted “7408M” for “7408,” “OPPT Document Control Officer (DCO)” for “Document Control Officer,” and “Environmental Protection Agency” for “U.S. Environmental Protection Agency” (§ 710.39(c)(3)); and by adding § 710.59(c)(4) to state that the reporting form and instructions will additionally be available via the Internet.
EPA has also made minor technical corrections to the existing provisions in § 710.39 that now appear in subpart B. EPA removed “for the 1998 reporting cycle” from the section heading to clarify that the section applies to the current reporting cycle. In § 710.39(a), EPA replaced the website address with the current address, www.epa.gov/oppt/iur/iur02/index.htm, and removed the Fax-on-Demand information, which is no longer available. In § 710.39(c)(1), EPA removed the TDD number, which is no longer available. The Agency corrected dates and addresses in § 710.39(c), (c)(3), and (d) by replacing “1994” with “1998,” “Mail Code 7408” with “Mail Code 7408M,” and inserting “OPPT” before “Document Control Officer.”
EPA made minor revisions to clarify the meaning of certain provisions. In § 710.1(a) “and recordkeeping” was inserted after “governing reporting,” “(TSCA)” was inserted after “(15 U.S.C. 2607(a)),” and “and keeping current” was inserted after “purpose of compiling” (§ 710.1(a)); in § 710.1(d), the note following the paragraph was added to the end of the paragraph and “Note: As a matter of traditional Agency policy,” was removed (§ 710.1(b)); in § 710.52(c)(1) “submitter” was substituted for “respondent” and “as described in § 710.59” for “from EPA at the address set forth in § 710.39” (§ 710.32(c)(1)); in § 710.52(c)3(ii) “indicating, for each reportable chemical substance at each site,” was substituted for “for each substance for which information is being submitted indicating” and added “, or both manufactured in the United States and imported in the United States” (§ 710.32(c)(5)); in § 710.52(c)(3)(iii) “designation indicating, for each reportable chemical substance at each site,” was substituted for “statement for each substance for which information is being submitted indicating” (§ 710.32(c)(6)); in §§ 710.45 and 710.55(a) “submission period” was substituted for “reporting period” (§§ 710.25 and 710.35(a)); in § 710.48 “section” was substituted for “§ 710.28” (§ 710.28); in § 710.48(b) “paragraphs (a) and (b)” were deleted (§ 710.28(c)); in § 710.52(c)(3)(iv) “reportable” was substituted for “subject” (§ 710.32(c)(7)); in § 710.58(b) “Chemical identity.” was added as a section header to more clearly identify the topic of the section, and “The following steps must be taken to assert” was substituted for “To
EPA replaced “manufactured or imported” with “manufactured (including imported)” to provide consistency and clarification. EPA made this change in: § 710.52(c)(3)(iv) (§ 710.32(c)(7)); § 710.58(c)(1)(v) (§ 710.38(c)(1)(v)); § 710.58(c)(1)(vi) (§ 710.38(c)(1)(vi)); § 710.58(c)(1)(vii) (§ 710.38(c)(1)(vii)); § 710.58(c)(1)(viii) (§ 710.38(c)(1)(viii)); § 710.58(c)(1)(x) (§ 710.38(c)(1)(x)); and § 710.48 (§ 710.28).
EPA moved three definitions that currently appear in § 710.2 to § 710.23, to clarify that they apply to the existing IUR. In § 710.3(d), three changes were made in recognition that the definitions are no longer separated into sections, but are contained within paragraph (d): in the § 710.3(d) definition for “Commerce,” “paragraph (1) of this definition” was substituted for “paragraph (1) of this section” (§ 710.2(i)), and in the § 710.3(d) definition for “Technically qualified individual,” “this paragraph” was substituted for “paragraph (aa)(3) of this section” and “paragraph (1) of this definition” was substituted for “paragraph (aa)(1) of this section” (§ 710.2(aa)(3)).
Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may promulgate a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making these minor regulatory changes in this final rule without prior notice and opportunity for comment because these minor corrections are non-substantive and do not affect the meaning or legal effect of the provisions affected, which remains the same as it was when the provision appeared in 40 CFR part 710. Thus, notice and public procedure are unnecessary for these minor changes to the existing or new provisions in 40 CFR part 710. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B).
EPA is required under TSCA section 8(b), 15 U.S.C. 2607(b), to compile and keep current an inventory of chemical substances in commerce. This inventory is known as the TSCA Chemical Substances Inventory (the TSCA Inventory). In 1977, EPA promulgated a rule (42 FR 64572, December 23, 1977) under TSCA section 8(a), 15 U.S.C. 2607(a), to compile an inventory of chemical substances in commerce at that time. In 1986, EPA promulgated the initial IUR at 40 CFR part 710 (51 FR 21447, June 12, 1986), also under TSCA section 8(a), to facilitate the periodic updating of the TSCA Inventory and to support activities associated with the implementation of TSCA.
TSCA section 8(a)(1) authorizes the EPA Administrator to promulgate rules under which manufacturers and processors of chemical substances and mixtures (referred to hereinafter as ``chemical substances'') must maintain such records and submit such information as the Administrator may reasonably require. Under TSCA section 8(a), the Agency may collect information associated with chemical substances to the extent that it is known to or reasonably ascertainable by the submitter. TSCA section 8(a) gives EPA broad discretion in determining the information for which reporting can be required. Some of the types of information which can be required under TSCA section 8(a)(2) include: Categories of use for each chemical substance; estimates of the amount manufactured or processed for each category of use; a description of the byproducts resulting from the manufacture, processing, use, or disposal of each chemical substance; an estimate of the number of individuals exposed in their places of employment; and the duration of such exposure.
TSCA section 8(a) generally excludes small manufacturers and processors of chemical substances from the reporting requirements established in TSCA section 8(a). However, EPA is authorized by TSCA section 8(a)(3) to require TSCA section 8(a) reporting from small manufacturers and processors with respect to any chemical substance that is the subject of a rule proposed or promulgated under TSCA section 4, 5(b)(4), or 6, or that is the subject of an order under TSCA section 5(e), or that is the subject of relief that has been granted pursuant to a civil action under TSCA section 5 or 7. The standard for determining whether an entity qualifies as a “small manufacturer” for purposes of 40 CFR 710.29, and for 40 CFR part 710 generally, is defined in 40 CFR 704.3. Processors are not currently subject to the regulations at 40 CFR part 710.
This document promulgates the IURA as subpart C in 40 CFR part 710, which includes provisions copied from the existing IUR regulations in 40 CFR part 710 that are not substantively changed as a part of this rulemaking, and the new IURA provisions in this final rule. Failure to comply fully with any provision of this final rule will be a violation of TSCA section 15 and will subject the violator to the penalties of TSCA sections 16 and 17.
The IUR requires U.S. manufacturers of organic chemicals to report to EPA every 4 years the identity of chemical substances manufactured annually during the reporting year in quantities of 10,000 lbs. or more at each plant site they own or control. The current IUR generally excludes several categories of substances from its reporting requirements, i.e., polymers, inorganic substances, microorganisms, and naturally occurring chemical substances. Plant sites subject to the rule are currently required to report information such as company name, plant site location, plant site Dun and Bradstreet number(s), identity of the reportable chemical substance, and production volume of each reportable chemical substance. Data were reported to EPA under the IUR in 1986, 1990, 1994, and 1998, and a collection is occurring in 2002.
The data reported under IUR are used to update the information maintained on the TSCA Inventory, which is a listing of chemical substances in commerce. EPA uses the TSCA Inventory and data reported under the IUR to support many TSCA-related activities and to provide overall support for a number of EPA and other Federal health, safety, and environmental protection activities (See Unit II.E. for
EPA is amending the IUR for three primary reasons: (1) To tailor the chemical substance reporting requirements to more closely match the Agency's information needs; (2) to obtain new and updated information relating to potential exposures to a subset of chemical substances listed on the TSCA Inventory; and (3) to improve the utility of the information reported. These amendments will enhance the information collected through the IUR, improve the scope of chemicals covered by the rule, and improve CBI claims, thereby accomplishing these three goals.
These goals are supported by the policy in section 2(b)(1) of TSCA, that “adequate data should be developed with respect to the effect of chemical substances and mixtures on health and the environment and that the development of such data should be the responsibility of those who manufacture and those who process such chemical substances and mixtures.” The data currently available to EPA are generally inadequate for risk screening purposes. TSCA section 8(a)(2) authorizes EPA to require manufacturers and processors of chemical substances to report a wide variety of data, including exposure-related information which will be reported for certain chemical substances under IURA. These amendments remove certain reporting requirements and add others to focus reporting under the IUR on that information which is most needed by EPA and other Federal agencies for screening, assessing, and managing risk. Additionally, the availability of these data will enhance public awareness of basic information about chemical substances.
Any evaluation of potential “risk” is generally based on a combination of hazard information and exposure information. EPA relies on risk screening to indicate which chemical substances pose a potential risk to human health or the environment, and thus warrant a more detailed, resource intensive analysis. The EPA Science Advisory Board's report “Reducing Risk: Setting Priorities and Strategies for Environmental Protection” (Ref. 1) and the National Academy of Public Administration's report “Setting Priorities, Getting Results, A New Direction for EPA” (Ref. 2) recognize that EPA's ability to use risk screening to set priorities and allocate its limited resources has been significantly impeded by a lack of exposure data. The manufacturing, processing, and use of chemicals on the TSCA Inventory result in a wide array of exposure scenarios. The exposure-related data included in IURA will greatly improve EPA's ability to conduct risk screening to identify chemical substances that could pose an unreasonable risk to human health or to the environment, or that otherwise warrant further investigation.
TSCA authorizes EPA to gather chemical hazard and exposure data, as well as related information such as production volume, to determine whether a chemical may pose an unreasonable risk of injury to human health or the environment. The Agency is able to institute risk management actions when necessary to mitigate or avoid unreasonable risk. Important elements in a successful chemical risk management program include identifying the chemical substances, manufacturing sites, and exposure scenarios of greatest potential concern, and using that information to set priorities for more detailed risk assessment, further research, advisory notices, or other appropriate actions. To help fulfill its TSCA responsibilities, EPA has established the IUR and other regulations to collect information on commercial chemicals.
The TSCA Inventory currently includes more than 76,000 chemical substances. Approximately 8,900 of these chemical substances are non-polymer, organic chemical substances manufactured at at least one site in quantities of 10,000 lbs. or more per year, as reported under the 1998 IUR data collection. EPA estimates that IURA will continue to collect information on approximately 8,900 chemical substances. However, the set of substances that will be reported under IURA will be somewhat different than the set of substances that was reported under the previous IUR collections primarily because of two changes: Raising the basic reporting threshold (see Unit II.F.2.) and adding reporting on the manufacture of inorganic chemical substances (see Unit II.F.1.a.). Data collected under IURA will enable EPA to more effectively conduct initial risk screening on a subset of the chemical substances within its purview, as described in the remaining part of this section and in Unit III.A.1.
EPA conducted tiered risk evaluations of chemical substances even prior to the enactment of TSCA in 1976. A tiered approach allows EPA to sort through many chemicals, focus on those chemical substances of greatest concern, and take appropriate actions. The Agency is thus able to optimize resources while limiting overall regulatory burdens. The essential steps of the tiered risk evaluation generally include: An initial evaluation (sometimes preceded by a prescreen of candidate chemicals); basic risk management decisions resulting from the initial screening; more detailed risk assessment when appropriate; and resulting risk management actions, such as regulatory or voluntary efforts to reduce risk. Each of these steps is only as effective as the available data inputs--if little data exist to inform the process, each step suffers as a result.
Exposure-related information collected through the IURA will inform the initial risk screening step. Initial risk screening is conducted using readily accessible information from the scientific literature, as well as other data readily available to the Agency, such as those provided by manufacturers and processors. This information set often is incomplete or of insufficient quality to allow the Agency to reach definitive conclusions about the set of chemicals under review, but may be sufficient to decide which chemicals appear to warrant further evaluation, or conversely, appear to be low priority and therefore do not currently warrant further review. These initial reviews are often more qualitative than quantitative. Also, continual updates to these data, such as the recurring reporting of exposure-related data under IURA, will ensure that the most serious concerns will be addressed even as chemical quantities and exposure potentials change between submission periods.
The effectiveness of risk screening, risk assessment, and risk management is dependent upon the quality as well as the availability of both hazard and exposure information. While past approaches to priority setting have emphasized relative chemical hazards and used production volume as a simple surrogate for exposure, EPA must increase its emphasis on the exposure component of risk screening and assessment. EPA no longer believes that reporting under the current IUR is adequate for these purposes. The IURA will provide EPA with data that will more accurately and realistically gauge potential exposures. The exposure-related information reported under IURA will be used in combination with hazard information developed under TSCA section 4 test rules and enforceable consent agreements/orders, through voluntary efforts such as the High Production Volume (HPV) Challenge Program (see www.epa.gov/opptintr/chemrtk/volchall.htm), and
Although the inherent hazard associated with a chemical substance will generally remain the same over time, exposure of workers and affected populations can change significantly. If the amount of a chemical substance produced increases significantly, releases to the environment and human exposures would also be expected to increase. Conversely, if the amount produced remains constant, environmental releases and human exposures may decline as engineering controls are added and pollution prevention practices are implemented. Although the hazard associated with a chemical generally remains constant, the risk associated with the manufacturing, processing, and use of a chemical substance will change as exposure increases or changes. The Agency needs to be able to identify changes in exposures as well as specific exposure scenarios, making it important to collect exposure data on a regular basis. Chemicals that present low hazard may still pose a risk if they are produced in large amounts and have high exposure potential, are released into the environment at high volumes and/or concentrations, or involve exposures to particularly sensitive subpopulations.
A voluntary effort called the Use and Exposure Information Project (UEIP) demonstrated that useful screening level exposure information is available to and can be reported by industry. The UEIP was a cooperative effort begun in the fall of 1992 between government and industry in recognition of the difficulties encountered in obtaining accurate and up-to-date exposure information on HPV TSCA chemicals. Participants included EPA, the Chemical Manufacturers Association (CMA) (now the American Chemistry Council, or ACC), the Chemical Specialty Manufacturers Association (CSMA), the Synthetic Organic Chemical Manufacturers Association (SOCMA), and the American Petroleum Institute (API) (Ref. 3). Data collected by EPA under the UEIP were similar to those now being required under IURA, and included the following: Production volume, site location, percentage of production volume for a given use, environmental releases, number of workers, worker activities, monitoring data, and industrial and consumer uses. EPA's experience with UEIP has shown that the types of data requested by the UEIP are available from industry and can be used to prepare screening level exposure assessments.
The UEIP, however, provided one-time reporting of information by a subset of the manufacturers of a small number of selected HPV chemicals. Given these efforts, the limitations of the data available from past and current information collections that are described in detail in the proposal for these amendments (64 FR 46772, August 26, 1999), and the amount of time it would otherwise take to acquire screening level exposure data for the chemical substances on the TSCA Inventory, it is appropriate to develop a more systematic and broadly applied approach to the prioritization process. The Agency is doing this by requiring that certain basic exposure-related information be reported under this amended rule instead of collecting the information through a one-time voluntary program.
The regulatory text of this document describes the specific IURA reporting requirements. EPA is also developing a guidance document with specific reporting instructions, and intends to conduct workshops to help potential IURA submitters become familiar with the revised reporting form (Form U) and amended reporting requirements. A draft version of the revised Form U is available in the docket, and EPA intends to develop an electronic version of the revised Form U. EPA will seek additional feedback on the revised form's structure, format, and layout before finalizing it for use in 2006. Submitters should note that the information in § 710.52(c)(1) and (c)(2) of the regulatory text (Part I of the revised Form U) need only be reported once per reporting cycle for each submitter site manufacturing 25,000 lbs. or more of a reportable chemical, while the information in § 710.52(c)(3) and (c)(4) of the regulatory text (Parts II and III of the revised Form U, respectively) will be reported for each reportable chemical at a reporting site, depending upon the chemical's production volume.
1.
EPA intends to screen potential risks associated with inorganic chemical substances to set priorities for testing, more detailed risk assessment and potential risk management. The phasing-in of inorganic chemical reporting provides manufacturers of these chemicals with the opportunity to familiarize themselves with IUR reporting while providing EPA and others with needed basic manufacturing information on inorganic chemicals. Future full reporting of exposure-related information will provide EPA and others with needed additional information for those inorganic chemicals with production volumes of 300,000 lbs. or more at a site. See Unit III.A.1. for a discussion of the importance of this exposure-related information to EPA and others for both organic and inorganic chemicals. Unit III.C.1.a. contains a discussion specific to inorganic chemicals. The basic impetus for collecting information on organic chemicals also holds for inorganic chemicals.
b.
The basis for this exemption is not because these streams are of known low toxicity. EPA believes that the chemicals termed “petroleum process streams” for purposes of IURA are often toxicologically active. However, these
In the final rule, EPA is making selected changes to the partial exemption list of petroleum process stream chemicals published in the proposed rule. Certain chemicals are being added to the list because they were inadvertently left off the proposed list covered by the exemption. These multi-component chemicals, all of which are listed in the 1983 API publication (Ref. 4), include the following chemical substances (CAS numbers): 8052-41-3, 64742-21-8, 64742-26-3, 64742-94-5, 68476-32-4, 68515-29-7, 68783-12-0, 68918-98-9, 68919- 15-3, 68953-80-0, and 70693-06-0.
In the final rule, EPA is also removing a number of chemicals from the petroleum process stream partial exemption list published in the proposed rule. These chemicals fall into three groups:
(1) Certain chemicals that are already part of the broader natural gas or polymer exemptions. Those already exempted under the natural gas exemption are: 8006-14-2, 8006-61-9, 64741-48-6, 68410-63-9, 68425-31-0, and 68919-39-1. Additionally, an incorrect CAS number 68425-31-1 was corrected to read 68425-31-0, which, again, has been removed from the partial exemption because it is already fully exempt from IUR reporting under the natural gas exemption. Chemicals removed because they are already fully exempt under the polymer exemption are: 64741-71-5, 64741-72-6, 67891-77-4, 67891-78-5, 68131-77-1, 68131- 79-3, 68131-80-6, 68131-81-7, 68131-83-9, 68131-99-7, 68132-00-3, 68410-01-5, 68410-10-6, 68410-13-9, 68410-14-0, 68410-16-2, 68410-59-3, 68425-27-4, 68425-28-5, 68476-87-9, 68477- 37-2, 68477-43-0, 68477-45-2, 68477-46-3, 68477-50-9, 68477-51-0, 68477-52-1, 68478-07-9, 68478-09-1, 68527-24-2, 68527-25-3, 68783-10-8, 68783-11-9, and 68955-30-6.
(2) Single component chemicals, except for water, should not have been included in the petroleum process streams partial exemption. As stated in the proposed rule, the exemption was intended to include only certain multi-component chemicals derived from the 1983 API publication (Ref. 4). As a result, the following single-component chemicals have been removed from the petroleum process streams partial exemption list as proposed: 8007-45-2 and 10024-97-2.
(3) Certain chemicals that are not included on the TSCA Inventory and therefore are not currently reportable under IUR have also been removed from the exemption list: 64741-93-1, 64741-94-2, 64742-00- 3, 64742-02-5, 64742-17-2, 64742-66-1, 64742-74-1, 64742-84-3, and 64754-96-7.
In this final rule, EPA is also making some additional corrections to the petroleum process streams partial exemption list published in the proposed rule.
(1) Incorrect CAS numbers for certain chemicals were provided in the proposed rule. These CAS numbers were incorrect because of typographical errors in the proposed rule. The correct CAS numbers (incorrect CAS numbers are in parentheses) are as follows: 8006-20-0 (8006-20-2), 64742-18-3 (64742-18-2), 64742-20-7 (64742-20-3), 68187-60-0 (68187-60-9), 68459-78-9 (68459-79-8), 68513-14-4 (68514-14-4), 68513-19-9 (68512-19-9), and 68514-38-5 (68514-38-4). Two additional incorrect CAS numbers were provided in the proposed rule, i.e., 64742-36-2 and 68741-41-9. The corrected CAS numbers for these chemicals, i.e., 64742-36-5 and 64741-41-9 respectively, were also provided in the proposed rule.
(2) Several duplicate CAS numbers that were included in the proposed rule have been removed.
(3) CAS numbers for certain chemicals have been superceded by new CAS numbers. The new CAS numbers are as follows (superceded CAS numbers are in parenthesis): 68187-58-6 (68334-31-6), 68410-13-9 (68477-56-5), 68308-08-7 (68478-21-7), 68334-30-5 (68512-90-3), 68918-99-0 (68513-26-8), 64742-83-2 (6851-30-7), 68988-79-4 (68515-31-1), 64742-93-4 (68516-21-2), 68606-10-0 (68606-35-9), and 64742-93-4 (68650-78-2).
c.
d.
EPA is establishing this partial exemption in an effort to improve IURA's efficiency and effectiveness. This partial exemption also provides additional benefits in reducing the potential reporting burden of IURA for certain manufacturers of these chemicals, and provides an efficient process for amending the partial exemption list as the need for processing and use information under IURA changes over time. The inclusion of a chemical substance under this partial exemption is not based on the potential risks of a chemical. This partial exemption is solely intended to provide a tool to assist the Agency in better managing the collection of processing and use information under IURA.
In the proposed rule, EPA specifically sought comment on a partial reporting exemption for ``low priority'' chemicals, and requested comment on the criteria the Agency might use to establish such an exemption, as well as the specific chemicals that might qualify for such an exemption. (See Unit IX.3. of the preamble to the proposal, at 64 FR 46794). EPA also offered several approaches for identifying the chemicals that could be considered for such an exemption. A number of commenters supported the creation of a partial exemption, and several provided suggestions for additional chemical substances or classes of substances that they wanted EPA to consider including in this or an expanded partial exemption.
In response to the comments received, EPA has established a partial exemption that applies when EPA has determined that there is a low current interest in the chemical's IURA processing and use information. Because IURA reporting is
In determining whether there is low current interest in IURA processing and use information related to a specific chemical substance, EPA will look to the specific circumstances surrounding the chemical in question, and may use one or more of the considerations identified below, and/or considerations not identified below, to make an informed decision. EPA will consider the totality of information available for the chemical substance, including but not limited to the following:
(A) Whether the chemical qualifies or has qualified in past IUR collections for the reporting of the information described in § 710.52(c)(4) (i.e., at least one site manufactures 300,000 pounds or more of the chemical).
(B) The chemical substance's chemical and physical properties or potential for persistence, bioaccumulation, health effects, or environmental effects (considered independently or together).
(C) The information needs of EPA, other federal agencies, tribes, states, and local governments, as well as members of the public.
(D) The availability of other complementary risk screening information.
(E) The availability of comparable processing and use information.
(F) Whether the potential risks of the chemical substance are adequately managed by EPA or another agency or authority.
To create an initial list of specific chemical substances covered by this partial exemption, EPA started with:
(1) The list of chemical substances identified as part of the HPV Challenge Program for which, based upon a preliminary review of known hazard information, it was determined that the SIDS data set would not further our understanding of the chemical's properties.
(2) The list of the chemical substances that the European Union (EU) exempted from its reporting requirements for existing chemical substances.
(3) Certain other chemicals identified during the Executive Order 12866 interagency review, for which EPA was able to quickly determine, based on a review of their chemical structures, properties, existing hazard information, and available exposure information, that IURA processing and use information is of low current interest.
This list was then adjusted based upon the totality of information available to EPA during the Executive Order 12866 interagency review period to ensure that the chemicals included in this partial exemption were those for which EPA determined that IURA processing and use information is of low current interest. EPA chose these chemicals because almost all previously underwent a review to have gotten on these lists and, considering the time available during the Executive Order 12866 interagency review, the Agency was able to utilize these lists, along with the Agency's current knowledge and understanding of the individual chemical's structure, properties, indications of hazards and potential exposures, to inform its determination that there is a low current interest in IURA processing and use information for these specific chemicals (Ref. 5). As indicated previously, EPA has established a process for revising the list of chemicals covered by this partial exemption, and intends to reconsider the chemicals identified in comments for applicability under this partial exemption.
The list currently consists of the following chemicals:
(1) Chemicals for which it had been determined that the SIDS data set would not further our understanding of the chemical's properties, and not otherwise sponsored under the HPV Challenge Program: 50-70-4, 50-99-7, 56-87-1, 57-50-1, 59-02-9, 69-65-8, 124-38-9, 142-47-2, 1592-23-0, 7440-44-0, 8001-21-6, 8001-22-7, 8001-26-1, 8001-29-4, 8001-30-7, 8001-31-8, 8001-78-3, 8001-79-4, 8002-03-7, 8002-75-3, 8006-54-0, 8016-28-2, 8016-70-4, 8021-99-6, 8029-43-4, 9050-36-6, 16291-96-6, 61789-97-7, 61789-99-9, 64147-40-6, 64755-01-7, 65996-63-6, 65996-64-7, 68188-81-8, 68334- 00-9, 68334-28-1, 68409-76-7, 68425-17-2, 68439-86-1, 68476-78-8, 68514-27-2, 68514-74-9, 68525-87-1, 68918-42-3, 68952-94-3, 68989-98-0, and 73138-67-7.
(2) Chemicals from the EU Existing Chemicals Program exempted list that are not currently otherwise a part of another Agency program such as the HPV Challenge Program: 50-81-7, 58-95-7, 59-51-8, 87-79-6, 123-94-4, 137-08-6, 150-30-1, 1317-65-3, 7440-37-1, 7727-37-9, 7782-42-5, 8001-23-8, 8002-13-9, 8002-43-5, 9004-53-9, 9005-25-8, 11103-57-4, 26836-47-5, 61789-44-4, 67701-01-3, 68002-85-7, 68131-37-3, 68308-54-3, 68424-45-3, and 68424-61-3.
(3) Chemicals otherwise identified by EPA based on consideration of the chemical's structure, properties, existing hazard information, and available information concerning the extent of exposure, and which are not currently a part of another Agency program such as the HPV Challenge Program: 1333-74-0, 7782-44-7, 68442-69-3, 68648-86-2, 68648-87-3, 129813-58-7, 129813-59-8 and 129813-60-1.
You may use the process established in § 710.46(b)(2) to submit a request for the Agency to consider other chemical substances for inclusion under this partial exemption. Please ensure that you provide sufficient information in your requests to enable EPA to make the necessary determination after considering the totality of available information. If you have any questions about this process, please contact the technical person listed under
Under the list revision process, EPA will provide a written response to requests within 120 days of receipt, and will maintain copies of these responses in a public docket that will be established for each reporting cycle. In order to assist the Agency in completing any necessary revision to the list before the reporting period, any request for revising the list of chemicals under this partial exemption must be received by the Agency no later than January 1 of the year before the reporting period in question (i.e.,12 months prior to the reporting period). For example, any request for inclusion under this partial exemption must be submitted to EPA no later than January 1, 2004, i.e., 12 months prior to the next reporting
EPA intends to develop a standard operating procedure (SOP) for this specific chemical partial exemption process, which will outline the process steps, as well as provide guidance to EPA personnel on making such determinations. EPA would like to seek your input during the development of this SOP, as well as feedback on the implementation of this process, as part of IURA implementation workshops that are planned.
One of the purposes of the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
Under the PRA, an agency may not conduct or sponsor, and a person is not required to respond to a collection of information, unless the agency has obtained approval for the activity from the Office of Management and Budget (OMB), an approval which must be renewed every 3 years. As part of the PRA approval renewal process, which includes an opportunity for public review and comment prior to OMB review, EPA intends to continue to evaluate this exemption process and will provide information about the chemicals evaluated, requests received, decisions made and related process elements and experiences as part of the information collection request (ICR) submitted to OMB. The Agency will also analyze the information collected from one reporting year to the next, in order to ensure that IURA information collection activities continue to meet the requirements of the PRA, including the demonstration of practical utility.
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EPA is also instituting a second, higher production volume threshold of 300,000 lbs. per year per site. Persons who manufacture a reportable chemical substance at or above this level will be required to report the information in Part III of the revised Form U (see § 710.52(c)(4) of the regulatory text) in addition to the information in Parts I and II of the revised Form U. The information reported on Part III of the form relates to the processing and use of chemical substances. EPA is instituting this separate threshold to limit processing and use data reporting to a subset of a few thousand IUR reportable chemicals out of the approximately 76,000 chemicals listed on the TSCA Inventory.
Information concerning lower production volume chemical substances is valuable, especially for identifying trends and additional substitute chemicals. However, wherever possible, the Agency has attempted to limit the reporting burden. In the future, EPA may find it necessary to collect information on chemicals at reporting thresholds below the thresholds introduced in this action. Although both the 25,000 lbs. and 300,000 lbs. thresholds are significantly higher than the current IUR 10,000 lbs. threshold, the enhanced information that will be gathered under the amended rule will enable the Agency and others to more efficiently identify those chemical substances warranting further, more in-depth review, as well as chemicals of lesser concern (see Ref. 6).
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As proposed, EPA is changing the IUR reporting year to a calendar year basis from a corporate fiscal year basis. This change standardizes reporting time frames across IUR submitters and across various other reporting programs, such as the TRI program.
Under the current IUR regulations at 40 CFR 710.33(b), submitters are required to report on a recurring basis during a 120-day period from August to December (the “submission period” under IURA) every 4 years. In a separate action following this final rule, EPA intends to change the submission period to occur earlier in the year, for example from January 1 through May 1. This potential change is related in part to the
In this final rule, EPA has not changed the reporting frequency (every 4 years), although EPA did consider alternative reporting frequencies (see the “Revised Economic Analysis for the Amended Inventory Update Rule,” Ref. 7). This means that the first reporting year for IURA information will be 4 years after the reporting year under the existing IUR, i.e., existing IUR reporting year is 2001, so the first reporting year under IURA will be 2005. The submission period will continue to occur in the year following the reporting year, i.e., existing IUR submission period is in 2002, so the first submission period for IURA will be in 2006.
The final rule indicates that subsequent reporting years and submission periods will occur every 4 years. In a separate action following this final rule, however, EPA intends to change the reporting frequency after the first reporting year under IURA (i.e., 2005, with submission to EPA in 2006) from every 4 years to every 5 years. This would mean that, instead of occurring in 2009, the second reporting year under IURA would be 2010 (i.e., 5 years after 2005), and would then occur every 5 years thereafter. The submission period would continue to occur in the year following the reporting year, so it too would occur every 5 years (i.e., 2011, 2016, etc.). In making this change, EPA also intends to change the recordkeeping period from 5 years to 6 years. EPA agreed to make these changes within the next 12 months as part of the interagency review under Executive Order 12866 in an effort to further reduce the potential reporting burden related to IURA. EPA estimates that a 5-year frequency would save regulated entities about $50 million over 20 years at a 3% discount rate (about a 16% reduction), and $37 million over 20 years at a 7% discount rate, and would still meet EPA's most critical data needs (Ref. 8).
For the first reporting year under IURA, EPA intends to issue guidance and conduct workshops to help the regulated community become familiarized with the revised regulations. A draft copy of the guidance for the 2006 submission period can be found in the docket for this rulemaking (Ref. 9).
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Persons who are not required to report under the existing IUR because they manufacture less than the 10,000 lb. reporting threshold have been required to retain volume records as evidence to support decisions not to submit a report. In this rulemaking, EPA is eliminating this provision because EPA believes that this type of information is routinely retained by companies in the normal course of business.
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EPA had additionally proposed to require submitters to report a plant site identification number in order to clearly identify the reporting site in a way that would allow the cross-linking of IUR information with information reported about the same plant site contained in other data bases. EPA specifically proposed requiring the reporting of a newly assigned Facility Registration Identifier (FRI), or, if the Facility Registry System were not yet in place in time for the publication of this final rule, the submitter would report the site's RCRA number, if one has been assigned to the site. In this final rule, EPA has decided not to require the submission of a site identification number in addition to the Dun and Bradstreet number that submitters must continue to report. The Agency may instead make number assignments either directly on the reporting form after it is submitted to EPA, or prior to mailing out the form at the beginning of a submission period. Submitters will not be responsible for obtaining or reporting this number.
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Submitters of specific CBI production volume data may allow the release of more general range information. EPA expects that roughly 50% of submitters of specific CBI production volume data will allow the public release of volume ranges. This expectation of reduced CBI claims is based on the CBI claim statistics associated with the development of the original TSCA Inventory (See “Inventory Update Rule (IUR) Technical Support Document: Evaluation of Likelihood of Confidential Business Information Claims for Production Volume Information” (Ref. 10)) as well as comments received from industry concerning potential TSCA CBI reforms (Ref. 11). The range option will allow the public greater access to data on chemical production volumes, and the Agency will be better equipped to publicly release more aggregate production volume data relevant to its risk screening and other decisions.
The production volume ranges in the final rule are 25,000 to 300,000 lbs.; 300,000 to 1,000,000 lbs.; 1,000,000 to 10,000,000 lbs.; 10,000,000 to 50,000,000 lbs.; 50,000,000 to 100,000,000 lbs.; 100,000,000 to 500,000,000 lbs.; 500,000,000 to 1,000,000,000 lbs.; and greater than 1,000,000,000 lbs. per year. These ranges are similar to those first used in the development of the original TSCA Inventory, except for one change, i.e., the lowest range starts at the IURA reporting threshold of 25,000 lbs. rather than the 10,000 lb. threshold that was used in the current IUR. EPA additionally made one change to the ranges included in the proposed rule, i.e, the upper end of the first range and the lower end of the second range were raised to 300,000 lbs. from the 100,000 lbs. range limit included in the proposal, resulting in ranges of 25,000 - 300,000 lbs. and 300,000 - 1,000,000 lbs. This change makes the ranges consistent with the second reporting threshold of 300,000 lbs. or more (see § 710.52(c)(4) of the regulatory text), and provides additional protection for submitters' production volume range CBI claims.
Under the proposed rule's 100,000 lbs. range limit for the lowest production volume range, submitters who did not claim the production volume range as CBI might have inadvertently provided the public with more information than they intended. For instance, for a submitter whose production volume was in the 100,000 to 1,000,000 lbs. range, who did not claim their production volume range CBI, and who did not report any information in Part III of reporting Form U (the industrial processing and use and the commercial and consumer use information), public users of the data would be able to infer that the submitter's production was somewhere between 100,000 to 300,000 lbs. per year - information which the submitter might have considered CBI. To protect against such inadvertent disclosures of CBI, EPA changed the production volume ranges to reflect the second reporting threshold of 300,000 lbs. EPA does not believe that the change significantly affects the utility of the data to the public.
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Workers involved in chemical manufacturing, processing, and use are a subpopulation of concern to EPA, the Occupational Safety and Health Administration (OSHA) (Ref. 12), the National Institute of Occupational Safety and Health (NIOSH) (Ref. 13), and other organizations (e.g., labor unions). Workers may often be exposed to chemical substances in higher doses and with greater frequency than the general population, and may therefore be at potentially greater risk of adverse health effects. The number of workers reasonably likely to be exposed to specific chemical substances is important to EPA and other organizations in developing screening level exposure scenarios. These scenarios are then used to develop priorities for testing, more detailed risk assessment, and risk management.
Under IURA, submitters are required to use ranges rather than specific values for reporting certain data, including the number of workers reasonably likely to be exposed and the number of processing or use sites. The ranges for reporting the estimated number of potentially exposed workers are found in § 710.52(c)(3)(vi) of the regulatory text. In general, reporting these ranges reduces the potential burden to submitters of developing a precise point estimate for the data element. The use of ranges should additionally result in fewer CBI claims than if precise point estimates were provided because ranges tend to reveal less sensitive information than specific estimates while still conveying sufficient information useful to effectively screen chemical risks. Submitters are permitted to claim the reported ranges as confidential if revealing even this general information would disclose information of a sensitive nature.
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Concentration is an important variable to consider when estimating the magnitude of potential exposures. Information about the maximum concentration of a chemical substance present at processing and use sites is frequently used in chemical risk screening in the review of PMNs for new chemical substances required by section 5 of TSCA and is used to the extent it is available in screening chemicals on the TSCA Inventory. For example, EPA has developed standard methods to estimate dermal exposures that workers may experience while performing common industrial operations such as sampling and loading chemicals into drums. These
A chemical may be produced in multiple physical forms and in multiple formulations and products. As described in Unit II.F.5.g., EPA is requiring reporting of each of the physical forms in which a chemical is sent off-site. For the purpose of exposure screening, EPA is requiring only the reporting of the maximum concentration, regardless of the various physical forms in which a chemical may be sent off-site.
EPA had proposed that submitters also report the average concentration of the chemical when leaving the manufacturing site (at 64 FR 46788). EPA is not promulgating this requirement because of the potential difficulty of determining the average concentration. For example, a submitter could produce many formulations containing a particular chemical substance, making a determination of average concentration difficult.
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The physical form of a chemical is an important factor to consider when estimating magnitudes and concentrations of potential exposures. EPA's analyses of TRI and PMN data demonstrated that the physical state of a chemical is a determining factor in predicting the potential for industrial releases of chemicals, and hence, exposures to humans and the environment. The results of the analyses are provided in a technical support document that was developed by EPA in support of this rule (“Inventory Update Rule (IUR) Amendments Technical Support Document: Exposure-Related Data Useful for Chemical Risk Screening,” Ref. 14). The physical state, which provides information on volatility and how the chemical is likely to be handled during manufacturing, processing, and use, is an important data element for the purpose of exposure and risk screening.
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Two existing definitions are being clarified (§ 710.3 of the regulatory text). EPA defines “manufacture” to mean to manufacture, produce, or import for commercial purposes and “manufacture or import `for commercial purposes'” to mean to manufacture, produce, or import with the purpose of obtaining an immediate or eventual commercial advantage, and includes, for example, the manufacture or import of any amount of a chemical substance or mixture: (1) For commercial distribution, including for test marketing, or (2) for use by the manufacturer, including use for product research and development, or as an intermediate.
Certain new definitions are being added to § 710.43 as a result of this final rule.
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l. Site-limited. For purposes of reporting under IURA, EPA defines “site-limited” to mean that a chemical substance is manufactured and processed only within a site and is not distributed for commercial purposes as a substance or as part of a mixture or article outside the site. Imported substances are never site-limited. Although a site-limited chemical substance is not distributed for commercial purposes outside the site at which it is manufactured and processed, the substance is considered to have been manufactured and processed for commercial purposes.
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The NAICS classification system is being used in IURA to describe the industrial setting in which chemical exposures associated with the industrial processing or use of a chemical substance may occur. Exposure to a chemical substance typically varies among industries. The NAICS code in conjunction with the Industrial Function Category (IFC) code and the processing or use operation will define the industrial, commercial, or consumer setting so that the appropriate scenarios can be applied to estimate worker, community, and environmental exposures to the chemical substance.
The NAICS codes which best describe the industrial activities associated with each reported industrial processing or use operation must be provided. If more than 10 NAICS codes apply to a reportable chemical substance, submitters need only report the 10 NAICS code, IFC and processing or use operation combinations that cumulatively represent the largest percentage of the substance's production volume, measured by weight. Submitters may also report the same NAICS code multiple times if the chemical being reported has several industrial functions or multiple processing or use operations. This limitation on reporting is intended to minimize submitters' reporting burden.
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A NAICS code and IFC combination sufficiently defines a potential exposure scenario for risk screening and priority-setting purposes. EPA conducted studies to determine whether information regarding the industrial sectors in which a chemical substance is processed and used, and information regarding the function a chemical substance performs within industrial processes, are useful for the purpose of screening level exposure assessments. These studies demonstrated that this type of information provides indications of the route, magnitude, and concentration of potential chemical exposures to humans and to the environment. The results of the studies are provided in two of the technical support documents that EPA developed in support of this rule (Refs. 14 and 16).
IFCs are also useful in estimating the frequency and duration of chemical substance exposures by indicating the type of application in which a chemical will be used (e.g., solvents (for cleaning and degreasing) or intermediate). The relationship between industrial function categories and the frequency and duration of exposure to chemical substances is particularly useful in developing exposure assessments in EPA's New Chemicals Program. These data elements are important elements in developing useful exposure scenarios. In the absence of these data, EPA often uses conservative estimates that may indicate a greater risk than is actually the case. Data that will be obtained under IURA will enable EPA to make more realistic characterizations of exposure, instead of “worst case” assumptions.
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The total percent production volumes associated with the NAICS code/IFC combinations may add up to more than 100%, given that the submitter is reporting on distribution of a chemical to sites in its control as well as downstream sites, some of which are not immediate purchasers from the original manufacturing site. Additionally, the total percent production volume may add up to less than 100% if the submitter cannot readily obtain information about how all of its production volume is processed or used by industry.
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Consumers comprise a subpopulation of particular concern to EPA, the Consumer Products Safety Commission (CPSC), and other governmental and non-governmental organizations. Information from submitters about whether the chemical substances they manufacture are used in consumer products is useful in estimating the potential risks to consumers that result from chemical exposures. In the absence of more specific data, EPA often assumes for risk screening purposes that large, unprotected populations may potentially be exposed to the chemical substances in consumer products. EPA is also working with industry and other stakeholders to develop hazard, exposure, and risk assessments regarding chemicals to which children are exposed. The commercial and consumer product information that will be reported under IURA will be used by EPA in the identification of chemicals that might be included in these programs, and may contribute to exposure assessments for these chemicals.
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EPA defines “intended for use by children” in § 710.43 of the regulatory text and in Unit II.F.6.h. Using this definition, if a submitter determines, based on readily obtainable information, that its chemical substance or mixture is used in or on a product that is intended to be used by children age 14 or younger, the submitter would indicate this on Form U. For example, EPA believes that certain products, like crayons, coloring books, diapers, and toy cars - to name a few - are typically intended to be used by children age 14 or younger. As such, if a submitter determines, based on readily obtainable information, that its chemical substance or mixture is used in crayons and toy cars, that submitter would report a “Y” in the Children's Use column on Form U for categories C01 and C10.
On the other hand, EPA believes that certain products, like household cleaning products, automotive products, and lubricants--to name a few--are typically not intended to be used by children age 14 or younger. As such, if a submitter determines, based on readily obtainable information, that its chemical substance or mixture is used in automotive care products and lubricants, that submitter could report a “N” in the Children's Use column on Form U for categories C03 and C09.
For further illustration, some examples of products that are typically intended for use by children 14 or younger are provided for each commercial and consumer use category (this listing is not intended to be exhaustive and should therefore not be considered limiting):
EPA chose the phrase “intended for use by children” because it appears in the Federal Hazardous Substances Act (FHSA) (15 U.S.C. 1261
EPA based the ages for the definition, i.e., 14 or younger, on the Standard Consumer Safety Specification on Toy Safety issued by the American Society for Testing and Materials (ASTM), Standard: ASTM F963-96a. This standard covers age groups through 14 years and defines “toy” as: “any object designed, manufactured, or marketed as a plaything for children through the age of 14 years” (Ref. 17, section 3.1.33).
Obtaining information indicating that a chemical substance or mixture is used in a product that is intended for use by children will enable the Agency and others to identify chemicals affecting this particularly sensitive population. EPA has long had an interest in protecting children from unreasonable adverse affects associated with exposure to chemicals. In 1995, EPA established a policy to ensure that environmental health risks of children are explicitly and consistently evaluated in our risk assessments, risk characterizations, and environmental and public health standards (see http://yosemite.epa.gov/ochp/ochpweb.nsf/homepage). Environmental health threats to children are often difficult to recognize and assess because of limited information to identify where children's exposures occur and limited understanding of when and why children's exposures and responses are different from those of adults.
In 1997, Executive Order 13045, entitled
The inclusion of the children's use category in IURA will provide the Agency and others with valuable information about the relationship between the IUR chemicals and products intended for use by children 14 or younger. This information will allow the Agency to respond to concerns about chemicals used in the manufacture of products intended for use by children, enabling the Agency to identify those chemicals that are reported as not being used in children's products, those chemicals that are used in children's products, and those chemicals where it is not known if they are used in children's products. This initial screen will then allow EPA and others to identify those chemicals used in children's products that might warrant further investigation or assessment, and thereby allow EPA, as well as other interested parties and affected entities, to better prioritize such assessments and maximize available resources.
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The total percent production volumes reported may add up to more than 100%, given that the submitter is reporting on distribution of a chemical to sites in its control as well as downstream sites, some of which are not immediate purchasers from the original manufacturing site. Additionally, the total percent production volume may add up to less than 100% if the submitter cannot readily obtain information about how all of its production volume is used in commercial and consumer products.
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Submitters will have an opportunity to make CBI claims for most of the information reported under IURA. To claim information as confidential, a submitter must check the appropriate box and sign the certification statement on the reporting form. If a submitter fails to do so, EPA could release the information to the public without further notice to the submitter. As in the past TSCA Inventory Update collections and the initial TSCA Inventory collection, by signing the certification statement the submitter certifies that its claims of confidentiality are true and correct. Procedures for claiming information submitted electronically (such as a submission on diskette) as CBI will be specified in the instruction manual that will be available each submission period as described in § 710.59 of the regulatory text. CBI should not be submitted by e-mail. A discussion about CBI claims under IURA is provided in this unit.
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In order to assert a claim of confidentiality for a plant site identity under this amended rule, the submitter must check the appropriate box on the reporting form indicating a confidentiality claim for plant site identity and substantiate the claim in writing by answering certain questions provided in § 710.58(d) of the regulatory text. If a submitter fails to substantiate the plant site CBI claim, EPA could make the information available to the public without further notice to the submitter.
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In the last four IUR submission periods when EPA sought actual production volume information, approximately 65% of the information was claimed as confidential. In contrast, only 35% of production volume data collected in ranges in the original TSCA inventory collection were claimed as confidential. This difference indicates that submitters may be significantly less likely to make CBI claims for production volume information reported in ranges than for discrete production volume figures. The high proportion of CBI claims in IUR reports has severely limited EPA's ability to convey production volume information to the public, even in the form of a national aggregate production volume for the chemical. EPA needs to be able to convey production volume information to the public to explain its chemical risk assessment and risk management decisions. Effective communication of this information is vital to EPA's overall mission. EPA has added the ability to claim production volume range information CBI in an effort to address this problem. In some cases, submitters may choose to claim their actual production volume as CBI, while allowing the more general production volume range to be made public.
EPA carefully considered the comments it received on the proposed IURA. Major comments are discussed below. Additional comment summaries and more detailed responses are contained in the “Summary of EPA's Responses to Public Comments Submitted in Response to Proposed TSCA Inventory Update Rule Amendments” (Ref. 18).
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EPA has an obligation under TSCA to protect human health and the environment from unreasonable risks associated with chemicals under its jurisdiction. In order to evaluate potential chemical risks, EPA has determined that a portion of the chemicals (both inorganic and organic) on the TSCA Inventory currently warrant the collection of manufacturing information, and that a subset of those chemicals (i.e., those produced in annual quantities of 300,000 lbs. or more at a site) currently warrant the collection of supplementary processing and use information. EPA is amending the IUR to provide an accurate and readily available source of basic exposure-related information for approximately 4,000 of the 76,000 substances listed on the TSCA Inventory. The amendments significantly limit industry's reporting burden while providing EPA with information needed to screen for risks to human health and the environment.
EPA's primary use of these data will be to identify priority TSCA chemicals for more detailed information gathering, risk assessment, and risk management in order to develop targeted programs, allowing the Agency to be proactive in protecting human health and the environment. Screening chemical risks generally requires a combination of both hazard and exposure information. The lack of exposure-related data beyond production volume data in the current IUR has severely limited the usefulness of the current IUR data for risk screening. Moreover, the exposure-related data that will be collected under IURA are not otherwise readily available from publicly available data sources (see Unit III.A.3.). This lack of exposure-related data has made it difficult for EPA and others to identify chemicals with potential exposures of concern, and has resulted in the generation of overly conservative screening level exposure assessments.
The addition of manufacturing, processing and use exposure-related data to IURA, especially when compiled by EPA into a searchable data base format, will enable EPA and others to more readily screen chemicals for exposure and risk. These reviews will allow for better prioritization of chemicals to identify those warranting more detailed assessments and to eliminate chemicals of lesser concern from further review.
Data generated by IURA will be used in a wide variety of programs fundamental to fulfilling the Agency's TSCA statutory mandate. These programs range from the more traditional existing chemicals risk screening efforts, to voluntary programs such as EPA's Design for the Environment program (see http://www.epa.gov/opptintr/dfe), to individual requests for analysis of chemicals not associated with a particular program. The IURA data base will be searched to identify chemicals or use scenarios meeting specific criteria. For instance, the data base could be searched to identify chemicals that, based upon these data, have the greatest potential for consumer exposure, creating a list of chemicals arranged according to the production volumes associated with different consumer uses. Additional examples of uses for IURA data are provided in this section and in EPA's “IURA Data Use Plan” (Ref. 19). The Agency anticipates that, as was true even for the basic production data reported under the existing IUR, new uses of IURA data by EPA and by others will continually emerge and cannot be predicted at this time.
Results from EPA tools such as the Use Cluster Scoring System (UCSS) will be greatly improved by IURA data. The UCSS is a computerized tool that combines hazard and exposure information from a variety of data sources, analyzes the data in relation to groupings by commercial use, or “clusters,” and identifies clusters of potential concern to EPA. EPA's Science Advisory Board (SAB) commented in its evaluation of the UCSS that the lack of exposure information in the system has impaired its usefulness (Ref. 20). The IURA data base will provide exposure information that the UCSS will be able to download directly and use. (For a description of UCSS, see V.B.6. of the proposed rule at 64 FR 46780 or www.epa.gov/oppt/cahp/actlocal/use.html)
EPA will also use IURA data to perform preliminary exposure and risk screening across a portion of the TSCA Inventory chemicals. Some of the same types of data that will be collected under IURA have been collected under the Agency's TSCA Existing and New Chemicals Programs and have aided EPA in performing exposure and risk screening. These exposure-related data were submitted as part of programs such as: The voluntary UEIP (see http://www.epa.gov/opptintr/exposure/docs/ueip.htm for a description of this project) and the PMN program under TSCA section 5. Although the UEIP and PMN programs involve the submission of certain data that are the same as or similar to data being submitted under IURA, these programs cannot sufficiently serve the needs that IURA will serve (see Units V.A.1. and V.B.5. of the proposed rule at 64 FR 46775 and 46780). However, these programs are examples of the usefulness of certain IURA data elements.
For example, several IURA data elements were used in an Existing Chemicals Program initial review of the chemical methyl ethyl ketoxime (MEKO). This review relied in part upon data submitted by industry under the UEIP. Some of the data are similar to those that will be reported under IURA and include the following: Production volume, manufacturing process, industry sector, industrial processing/use activity, functional use, number of sites, number of workers, physical/chemical properties, and consumer product information. Other UEIP information submitted by industry on MEKO are not of the sort that will be collected under IURA, such as environmental releases (releases to air, water, etc.), worker exposure activities, and monitoring data. The IURA is designed to obtain information that is the most critical for generating screening level exposure profiles.
The UEIP submissions for MEKO indicated that there were one manufacturer and two importers of MEKO in 1993 and five primary end uses (submissions provided percentages of MEKO production and import volumes devoted to each use). The submissions also reported the number of workers at the manufacturing site, the physical forms of products containing MEKO, and the MEKO weight fraction in each use.
The MEKO use information was combined with information from available workplace monitoring studies and modeling approaches to compile a screening level workplace exposure assessment. The UEIP information on use provided crucial information to allow EPA to postulate process operations, worker activities, and possible exposures. For example, MEKO's primary use (92% of production and import volume) is as a paint additive. This fact allows EPA to refer to information on paint manufacturing and use to estimate exposures to workers who either formulate paints or apply the paints using spray guns or other techniques. MEKO use in paint indicates a potential for exposure to several large populations (workers and consumers) because exposure to even small amounts of paint can result in significant exposure levels to chemicals in paints. Such use information can also be used by EPA to generate estimated numbers of workers in very small businesses (
The usefulness of IURA data elements is also demonstrated by EPA's use of similar data in its New Chemicals Program. PMNs for new chemical substances submitted to EPA under TSCA section 5 require many of the same exposure-related data elements that will be reported under IURA. Exposure-related data in PMNs include estimates of production volume, categories of use, percent production volume in the categories of use, maximum number of workers exposed,
The manufacturer of a new chemical provided the following information in a recent PMN submission: An estimated import volume; chemical uses and the percentages of the import volume devoted to each use (non-cosmetic applications as a component of a fragrance formulation used in household products such as detergents, cleaners, soaps, room fresheners, etc.); number of sites and workers; and consumer product information (weight percent in products). EPA used this information in combination with technical references and other data to estimate the number of manufacturers of household products who may use the new substance. Releases of the new substance as a result of the fragrance formulation process and from manufacturers of the household products were estimated, resulting in estimated environmental concentrations of the new substance due to its release and estimated general population exposures to the new substance. EPA also used the information on processing and use in combination with modeling techniques to estimate the number of workers and consumers who may be exposed to the new substance and their estimated exposures to the new substance. These exposure-related estimates, when combined with information on the estimated hazards of the new substance, indicated that the estimated risks to potentially-exposed workers, the general population, consumers, and aquatic species were all below levels of concern. Therefore, the Agency could determine that no further regulation under TSCA section 5 was needed for this new substance. In contrast, without this information, EPA would have had to rely on generic assumptions for approximating potential exposures. These types of assumptions are intended to be conservative in nature and therefore often result in higher than likely exposure estimates.
Information from the IURA may also be used in efforts to identify single chemicals to support potential exposure prevention activities. For example, EPA recently learned that certain imports of zinc sulfate were contaminated with cadmium. Using the IURA processing and use data on inorganic substances, EPA could have quickly identified importers of zinc sulfate and segments of industry or the general population that might use the chemical. EPA then could have targeted warnings of the potential for exposure to cadmium more effectively, thereby preventing exposures to the groups likely to be the most highly exposed.
Other Federal agencies have also long recognized the need for and importance of exposure data. OSHA, NIOSH, and CPSC have written letters supporting EPA's and their own need for exposure data (Refs. 12, 13, 21, 22, and 23). In May 2000, the Government Accounting Office (GAO) stated that “Various federal agencies have collected such human exposure data for a number of purposes; historically, these collection efforts have been limited to selected chemicals, subpopulations, and time periods” (Ref. 24).
Other government agencies, industry, public interest groups, and the public in general will be able to access and use the non-CBI portion of IURA information. The IURA exposure-related data will be important to users beyond those who accessed the existing IUR in the past solely for production volume information. The Natural Resources Defense Council (NRDC), for example, has expressed interest in using IURA information (Ref. 25). In another case, persons interested in reviewing the HPV Challenge Program screening level hazard data (see http://www.epa.gov/opptintr/chemrtk/volchall.htm) will be able to use the non-CBI exposure-related IURA data to put the hazard data into context. Risks identified via evaluation of these screening level hazard and exposure data then can be addressed.
Although EPA can envision a wide variety of uses for the new IURA exposure-related information as described in this section, the Agency anticipates that even more opportunities exist for use of this information, as is true for the basic production data reported under the current IUR.
2.
a.
EPA considered the types of information needed for screening level exposure and risk assessments and believes the information that will be collected through IURA will have the necessary level of accuracy, validity, adequacy, and reliability for such assessments. EPA agrees that there are many ways to increase the accuracy, validity, and reliability of the data. However, in developing IURA and considering various alternatives, EPA relied on experience from programs such as TSCA's PMN program and the UEIP data collection, and maintained a balance between data needs for exposure screening and priority setting and the burden associated with providing the information. If the Agency had required very precise, specific reporting, submitter burden would have increased beyond that which is appropriate for a screening level data collection. EPA also agrees that there are many factors that can affect exposure potential; however, the data provided by the submitters will provide baseline information sufficient for an initial screen of exposure potential.
i.
ii.
Commenters stated that the accuracy and reliability of much of the information reported in Part III of the proposed revised Form U (§ 710.32(c)(4) of the proposed regulatory text, now § 710.52(c)(4)) would be highly questionable because it relates to sites, activities, and products that are not under the direct or indirect control of the reporting company. Industry programs such as the ACC's Responsible Care Program (see http://www.americanchemistry.com for more information) require that, as part of the program, member companies work with customers, carriers, suppliers, distributors, and contractors to foster the safe use, transport and disposal of chemicals. The Responsible Care Program, coupled with basic marketing and sales force activities, suggests that many companies are well informed about downstream uses of their chemicals. EPA recognizes that submitters may not always have detailed information about how the chemical(s) they make are used. As a result, submitters will only be required to report this information to the extent it is “readily obtainable” (see Unit II.F.6.b.). In addition, the Agency believes, based on its experience with the New Chemicals Program, the UEIP, stakeholder meetings, discussions with industry about voluntary risk management programs, and industry's various self-regulation initiatives, that most submitters have at least some basic information about downstream uses, such as the information that will be reported under the IURA. These data are believed to be of sufficient reliability for use by the Agency and others for purposes such as screening level risk assessments and prioritization.
EPA also requires much of the IURA information to be submitted in EPA specified ranges. This requirement benefits both the Agency and submitters. First, range reporting is less burdensome for the submitter than calculating specific numeric estimates. Demanding greater data accuracy increases the burdens associated with data collection. Second, information reported in discrete numeric values can indicate a level of accuracy that is not necessarily present. EPA believes that a higher level of confidence in data accuracy can be achieved by specifying ranges.
Commenters suggested that EPA use other methods to obtain processing and use information, such as voluntary data collection programs. However, voluntary industry efforts are not uniformly reliable for collecting data, and the Agency generally cannot ensure that data submitted under voluntary efforts will be complete and accurate. For example, the UEIP was undertaken by EPA in partnership with industry to collect relatively detailed information on 60 high production volume chemicals. EPA received data for 48 of the 60 UEIP chemicals. Many of the forms received for those 48 chemicals were not completely filled out, and only a subset of manufacturers submitted data. Thus, while the information that EPA received was quite useful, it was insufficiently complete for the purposes to which IURA information will be put. EPA's experience with UEIP is an indicator that exposure data collected under a voluntary effort are likely to be uneven and fall short of meeting EPA's needs.
iii.
EPA agrees that validated exposure data are the most useful for the full range of Agency risk assessment activities. However, EPA's experience with similar data collection efforts such as TSCA's New Chemicals Program demonstrates that the type of data EPA is collecting under IURA are sufficient for the purpose of screening to prioritize follow-on efforts for risk assessment and management. A rigorous validation process for all IURA exposure-related information would impose significant additional burdens on industry and the Agency that would likely outweigh the benefits accruing to the screening process. As discussed in Unit III.A.1., EPA exposure and risk evaluations are often iterative, with screening level assessments succeeded by more intensive and data rich assessments, as indicated by the screening level assessments and as data become available. The IURA data will be useful to the Agency in evaluating potential exposures and risks, serving as indicators as to what levels and types of exposures from which chemicals need further review.
b.
3.
The alternate data sources commenters described were generally sources that EPA had already evaluated in its analysis for the proposed rule or with which EPA was otherwise familiar. EPA explored a wide variety of public data sources, as demonstrated in the following: “Inventory Update Rule (IUR) Amendments Technical Support Document: Exposure-Related Data Useful for Chemical Risk Screening” (Ref. 14), “Economic Analysis of Proposed Amendments to the TSCA Section 8 Inventory Update Rule” (Ref. 26), and “A Review of Existing Exposure-Related Data Sources and Approaches to Screening Chemicals: A Response to CMA” (Ref. 27) (see also Unit V.B.5. of the proposed rule at 64 FR 46780)). For the most part, commenters did not identify new sources or provide additional information to support the assertion that these alternate data sources provide the information that EPA proposed to collect under IURA. After considering the information provided, EPA believes the decision not to use an alternate data source as a replacement for IURA is still sound. The Agency may, however, evaluate an alternate source for individual chemicals as part of its consideration of a particular chemical under the new exemption process established in the final rule.
EPA has spent considerable effort and resources evaluating other data sources that could potentially provide the accurate and up-to-date information that the Agency needs. A primary consideration, as mandated by TSCA, was not to subject industry to unnecessary or duplicative reporting. The exposure information sought under IURA is not currently accessible to EPA. Although some useful exposure-related data exist in some sources, the data are insufficient for the purposes to which IURA data will be put, typically because they are neither timely or detailed enough. Without IURA, EPA has difficulty efficiently screening potential risks posed by approximately 4,000 higher production chemicals on the TSCA Inventory.
Commenters stated that, if EPA were to have specific concerns about information collection for substances or categories of substances, the selective use of TSCA section 8(a) PAIR (40 CFR part 712) reporting would be more cost effective than requiring all manufacturers exceeding a production trigger to report manufacturing, processing, and use information. EPA disagrees with the suggestion that PAIR rules would be an efficient or cost effective way to compile a data base to allow the relatively large-scale risk screening of chemicals on the TSCA Inventory. PAIR is a very useful data collection tool when one or a small group of chemicals is targeted for risk assessment; however, PAIR is limited when collecting information on a large number of chemicals. Additionally, the PAIR rule has fewer, less definitive data elements than IURA, is a one-time collection versus the recurring collection of IURA, and will not provide data sufficient to meet the goals of IURA. Use of PAIR rather than IURA would force EPA to set risk screening priorities based on hazard and production volume alone, or in response to requests from others. As discussed in the document entitled “A Review of Existing Exposure-Related Data Sources and Approaches to Screening Chemicals: A Response To CMA” (Ref. 27), this approach greatly hinders EPA's ability to make effective and efficient risk management decisions.
EPA plans to continue using existing data sources and information sets. For example, EPA has used data previously collected under PAIR, CAIR, and the UEIP in a variety of ways, such as to support TSCA section 4 test rule analyses, to provide analyses for the Agency's efforts under the OECD SIDS program, and in support of in ternational efforts (Refs. 18 and 27). However, the existing sources are generally best used when conducting a more detailed risk assessment of a specific chemical of concern, rather than preliminary risk screening of a relatively large set of chemicals. The IURA submissions will provide a consistent set of screening level exposure data that will allow EPA to better identify on a relative basis the chemicals of highest priority for further risk evaluation. EPA will use IURA data to identify those specific chemicals which are of potential concern and need follow up assessment. For instance, IURA exposure data integrated with HPV Challenge Program hazard data will provide the input needed to effectively develop risk-based priorities for more detailed assessment of chemicals. Once EPA has determined that a specific chemical (or group of chemicals) has sufficient potential for exposure or risk to warrant further assessment, the Agency will use the other information sources and data gathering tools as appropriate.
4.
TSCA contains many of the principles embodied in the right-to-know concept. For instance, TSCA section 14(b) specifically authorizes EPA to disclose health and safety data collected under the statute. TSCA section 14 reflects the legislative determination that certain TSCA data should be available to the
TSCA was designed in part to address the lack of health, safety, and exposure information government agencies and the public faced in dealing with chemicals. See, H.R. Rep. 94-1341 at 6 (1976), reprinted in Legislative History of the Toxic Substances Control Act, at 414 (1976) (“Present authorities for protecting against and regulating hazardous chemicals are fragmented and inadequate . . . Most significant among the deficiencies are . . . (3) No authority exists for collection of data to determine the totality of human and environmental exposure to chemicals.”). TSCA was seen as a way of providing federal agencies and the public with access to health, safety, and exposure data so that the risks of chemical substances could be more fully evaluated and understood. See, Statement of Sen. Hartke, Cong. Rec., March 26, 1976 [S4397- 4432], reprinted in Legislative History of the Toxic Substances Control Act, at 218 (1976) (“[T]he essential element of this legislation is that it has attempted to provide for the individual- not only who works, but for the rest of American society- the right to know what is in store as far as the toxicity of the chemicals is concerned.“). Congress envisioned TSCA as a tool for providing the public and others with health, safety, and exposure information about chemical substances.
Finally, TSCA does not limit the use or disclosure of data (except if data are considered confidential) collected under the statute. Congress drafted TSCA in part to provide basic health, safety, and exposure information to other federal agencies, as well as state, local and international governments. TSCA provides several mechanisms--TSCA sections 9, 10, and 12 for example--for sharing health and safety data among various levels of government. These sections again demonstrate TSCA's role as a tool for gathering and disseminating information about chemicals.
1.
Other commenters recommended that EPA allow submitters to report more than one physical form for each reportable substance, because a substance may leave a site in more than one physical form. EPA agrees with this comment and is requiring in this final rule that submitters report all physical forms of a substance when the substance is sent off-site. Reporting on all physical forms in IURA will lead to a better assessment of exposure to a chemical substance. For example, processing a fine, nonagglomerating powder could result in occupational exposure by inhalation of chemical dust. Processing the same chemical as a liquid solution would eliminate, or at least reduce, the inhalation risk (the liquid could become an aerosol and be inhaled, depending on the processing activity). By combining data elements on the physical form of a chemical substance, its production volume, and the fraction directed to each industrial processing or use activity, a screening estimate of the potential exposure associated with manufacturing or processing of a chemical substance can be derived. The resulting exposure assessment will be more representative and less conservative than if the physical form(s) were unknown. For these reasons, EPA is requiring the reporting of all physical forms in which a chemical substance leaves the manufacturing site.
b.
The Agency has determined that average concentration information is not critical for purposes of screening level exposure assessment and has not included this element in this final rule. Screening level review is typically meant, in part, to serve as a method of identifying chemicals that even at their maximum concentration are less likely to present a risk to human health or the environment. Average concentration information cannot be used to make such a determination.
EPA recognizes that the concentration of an IUR reportable chemical may vary from shipment to shipment leaving a submitter's site, or when reacted on-site to produce a different chemical substance. However, maximum concentration is to be reported in wide ranges and not specific numbers, thereby alleviating the need to determine specific concentrations. Additionally, EPA does not intend for submitters to go to great lengths to determine what maximum concentration ranges to select for IUR reporting. Instead, EPA is simply requiring that submitters select a range of concentrations from a list of given ranges. The ranges from which submitters must select are: Less than 1% by weight; 1-30% by weight; 31-60% by weight; 61-90% by weight, and greater than 90% by weight.
One commenter was concerned that EPA did not specify whether it would require submitters to conduct specific chemical testing or statistical analysis in order to report concentration data, or whether submitters should merely estimate concentrations. In addition, the
2.
Submitters are required to report up to 10 unique combinations of processing or use categories, IFCs, and NAICS codes (see § 710.52(c)(4)(i)(A), (c)(4)(i)(B), and (c)(4)(i)(C) of the regulatory text). In making their selection from among the IFC codes, submitters must determine which IFC best represents the specific industrial use of the reportable chemical within a given NAICS code/processing and use category. The Agency will provide examples of how to select which code “best represents” an industrial use in the instruction manual that will be available to all submitters (see § 710.59 of the regulatory text). Submitters may report multiple IFCs for the same NAICS code, and multiple NAICS codes may be paired with the same IFC. Unit II.F.7. provides further information on reporting industrial processing and use information.
The set of IFCs adopted by EPA at § 710.52(c)(4)(i)(C) encompasses the vast majority of uses for chemicals subject to IUR reporting. Rather than include all possible industrial functions, EPA selected categories based upon information developed due to other Agency programs such as the TSCA New Chemicals Program and believes that the categories included in this final rule are sufficient for initial risk screening purposes. One commenter suggested that the submitter be allowed to supply a “free response” for an industrial function that is not on the EPA list. However, a “free response option” could result in a wide array of answers, which EPA would then have to group. The Agency believes the chemical manufacturer is best equipped to determine with which industrial function scenario the industrial processing and use data should be matched. If none of the categories fit, however, the submitter could report the “other” category. By aggregating similar uses under a single NAICS and a single IFC code, EPA will be able to more effectively characterize the risk associated with the totality of the production of each chemical substance. By requiring the submitter to identify the appropriate IFC code(s) from the provided list, EPA seeks to minimize the errors that could occur if the Agency, rather than the submitter, attempted to aggregate uses other than those identified in the prescribed list of IFCs.
3.
EPA is not changing the commercial and consumer product categories at this time, although the Agency may revisit these categories in the future should a need arise for more specific commercial and consumer use information. EPA has evaluated the EC's set of use categories and has determined that these categories blend functional use information with end use information. They therefore constitute a more complex identification system than the one that will be used under IURA. For the screening level purposes of IURA data, EPA currently believes that focusing on end use information alone for commercial and consumer uses provides the necessary level of detail for its screening level reviews. EPA is concerned that the use of EC's scheme for the commercial and consumer reporting would be overly burdensome for the current needs identified by EPA, due to the greater number of categories (55 EC categories versus 19 IURA categories). Further guidance on the relationship between EC and IURA categories can be found in the instruction manual for IURA (see § 710.59 of the regulatory text) (Ref. 9).
In addition, the EC system does not appear to describe the commercial or consumer end uses in a way that meets the needs identified by EPA and targeted by IURA. For example, a chemical that is used as a propellant would be listed under the category “aerosol propellants” using the EC system. Such a listing would not provide the Agency with the information it needs about the type of commercial/consumer product in which the submitter uses the propellant (e.g., paint, a lubricant). For more information on EPA's commercial and consumer category analysis, see the document “Inventory Update Rule (IUR) Technical Support Document Selection of Consumer and Commercial End-Use Categories” (Ref. 29). EPA will provide examples of the types of products that fit into its commercial and consumer product categories in the instruction manual that will be made available to all submitters (see § 710.59 of the regulatory text).
EPA considered requiring submitters to identify the specific use of the product, rather than the use a miscellaneous “Other” category. However, the Agency prefers to require submitters to choose from among the commercial and consumer product categories provided at § 710.52(c)(4)(ii)(A) of the regulatory text in order to encourage manufacturers to more carefully consider the listed categories, as opposed to being allowed to provide their own specific description. In this manner, EPA can more effectively assign chemicals to the correct categories, and avoid guessing the appropriate categories because the Agency believes the chemical manufacturer is best equipped to determine with which commercial or
b.
EPA agrees that substances that are manufactured only for non-TSCA purposes, as described in TSCA section 3(2)(B), are exempt from all TSCA requirements and are not subject to reporting under IURA. Therefore, substances that are intended at the time of manufacture to be used for non-TSCA purposes (e.g., as a pesticide, as a drug) do not have to be reported.
The Agency also agrees that submitters under IURA will not be required to report on the non-TSCA downstream uses of the TSCA chemicals that they manufacture. It is important to note that EPA was able to reach this conclusion without reaching the issue of whether it has the authority to require such reporting. Descriptions of IFCs (see § 710.52(c)(4)(i)(C) of the regulatory text) have been clarified to reflect the fact that they only include TSCA uses. For example, one of the IFCs is called “Agricultural chemicals (non-pesticidal).” The consumer and commercial product categories (see § 710.52(c)(4)(ii)(A) of the regulatory text) are also restricted to TSCA uses. An example of one of these categories is “Lawn and garden products (non-pesticidal).” This category includes chemicals such as compressed gasses in delivery systems for many pesticides used indoors and outdoors, and other intermediates, but does not include pesticides. Additionally, many lawn amendments such as fertilizers contain chemicals that may be regulated under TSCA, (e.g., surfactants).
c.
EPA does not agree that manufacturers of chemicals that are later incorporated into articles should be exempt from the reporting of consumer and commercial end-use information. Certain exposures do result from chemicals incorporated in articles. For example, potential dermal and inhalation exposures occur from chemicals incorporated into products in the category “fabrics, textiles and apparel.” Specific cases, such as formaldehyde from pressed wood products used in mobile homes or chlorinated flame retardants used on children's sleep wear, also demonstrate that potentially harmful exposures can occur from chemicals incorporated into articles.
d.
Production volume and concentration information reported at the manufacturing site is typically different information than percent production volume and concentration in consumer and commercial categories. Often manufacturers will sell a chemical for multiple uses, in a variety of products, or the chemical will be used multiple times before reaching the consumer/commercial product. For instance, a manufacturer may report that a chemical is used in three different commercial and consumer product categories—20% of the manufactured production volume is used in category A, 35% in category B, and 45% in category C. Additionally, while the manufacturer sells the product at a certain concentration (say 90%), a final product may have a different concentration. For instance, the final product may contain only 5% of the chemical. The resulting potential exposure scenario associated with such a product would be very different from a scenario where the concentration in the final product is 90%. The Agency, therefore, is retaining the commercial and consumer percent production volume and maximum concentration data elements.
4.
One commenter stated that OSHA's definition of an employee is appropriate to identify persons reasonably likely to be exposed to chemical substances. This commenter stated that the Agency should broaden the definition of exposure in IURA to include potential (accidental or possible) exposures to chemical substances which workers may experience in the course of their employment. This commenter also stated that this is what worker exposure entails in the real world and to exclude some portion of those worker exposures, as EPA proposed, is inappropriate. A second commenter felt that persons who could be exposed to a chemical substance in foreseeable emergencies should be included in EPA's new definition for persons who are reasonably likely to be exposed to a reportable substance.
EPA has determined that the OSHA definition of “employee” does not provide a more appropriate standard than the one proposed and finalized in IURA. Whereas OSHA wanted to provide all persons who could foreseeably be exposed to a chemical substance with knowledge of the potential hazards of that chemical, EPA is seeking to specifically identify those persons routinely exposed to chemical substances and for whom engineering controls and personal protective equipment are likely to provide the greatest benefit. The definition adopted by EPA for a person “reasonably likely to be exposed” in this rule will target those individuals who routinely have the potential to be exposed to chemical substances, and for whom chronic risks are greatest. This definition provides more useful and realistic information for the risk screening purposes for which EPA envisions IURA data will be used.
b.
A commenter suggested that EPA use PPE information as a way to submit lower estimates for various IUR data elements, such as the number of workers. For the reasons provided in the previous paragraph, EPA will not use PPE information to lower the estimates of workers reasonably likely to be exposed. Because the reporting of PPE information would not contribute to the initial risk screening process and would impose an additional burden on persons reporting under IUR, EPA is not including information on PPE in the reporting requirements for this rule.
c.
EPA received a variety of comments concerning which chemicals and sites should be subject to reporting and recordkeeping requirements.
1.
a.
EPA originally created the inorganic chemical exemption because it believed that the hazard potential of many inorganics was “relatively well-established” (50 FR 9944, 9947, March 12, 1985) and that hazard information alone was sufficient for prioritization within inorganic chemical substance risk assessments. EPA now intends to increase the consideration given to exposure, another component of risk, in screening chemicals and in setting priorities for risk assessment and risk management activities. The Agency no longer believes that chemical hazard information alone provides a sufficient basis for prioritization for these purposes. As a result, the former basis for this exemption is no longer applicable.
i.
EPA uses basic IUR information in a wide variety of ways (as described in Units II.C. and E.) and expects the basic IUR information on inorganic chemicals to be used in similar ways. For example, EPA used IUR information in the HPV Challenge Program (see http://www.epa.gov/opptintr/chemrtk/volchall.htm) to identify chemicals produced in aggregate national volumes of one million pounds or more. The HPV Challenge Program has not been able to include inorganic chemicals as EPA did not have the necessary production volume information on the inorganic chemicals produced in or imported into this country. Additionally, the TSCA Interagency Testing Committee (ITC) has encountered difficulties in its attempts to identify inorganic chemicals for recommendations to EPA for testing or other further evaluations due to the lack
ii.
EPA's primary use of both the basic data collected during the first submission period and the additional exposure-related data collected during subsequent submission periods will be to identify priority TSCA chemicals for more detailed information gathering, risk assessment, and risk management in order to develop targeted programs to protect human health and the environment. Screening chemical risks generally requires a combination of both hazard and exposure information. The absence of exposure-related data for inorganic chemicals, beyond even the basic production data collected during the first submission period under IURA, would severely limit the usefulness of IURA data for risk screening. See Unit III.A.1. for further discussion of additional uses of IURA exposure-related data.
While some commenters supported the phasing-in approach, other commenters suggested that EPA review the information collected on inorganic chemicals under the partial exemption and collect additional information on these chemicals through a future rulemaking. Commenters suggested a variety of ways to collect this additional information, including specifically listing chemicals that would be subject to future IUR collections or using PAIR. However, EPA's experience with using information from other sources or collecting information using PAIR has demonstrated that this approach is insufficient, as discussed in Unit III.A.3.
iii.
Some of the suggested data sources pertain to naturally occurring substances which are exempted from reporting by a provision in IUR that EPA has not proposed to change, i.e., 40 CFR 710.26(a)(3), which is codified as § 710.46(a)(3) for IURA. Many of the remaining data sources identified by commenters pertain to metallic alloys or studies of a single metal species and do not include information on the multiplicity of pigments, flocculating agents, oxidants, photochromic salts, flame retardants, catalysts, and other inorganic compounds for which data are sought through IURA. In some cases, the data sources are one-time collections of information and therefore would not provide current information on the inorganic chemical industries. Others, although revised from time to time, do not identify the chemicals with sufficient specificity, do not identify the manufacturing site or a technical contact, and/or do not provide information on the use of the inorganic chemical. In sum, the data sources identified by commenters and by EPA are not sufficient to provide the information sought through IURA. EPA has consulted with USGS to investigate whether the USGS annual survey of approximately 80 minerals could be amended to better serve as a source for use and exposure data that could be used in place of IURA for those minerals (Ref. 31). EPA plans to identify and initiate dialogues with other federal agencies about collection activities that have the potential for generating additional federal paperwork burden reductions, particularly related to the IURA. The new exemption process established in the final rule provides an opportunity for EPA to consider alternate sources of information for individual chemicals. EPA is extremely sensitive to the PRA's directive for federal agencies to reduce unnecessary burden, and will continue to consistently strive to find areas in which burden can be decreased to the maximum extent practical, as well as carefully evaluate new or revised information collections to ensure that the Agency's informational needs are met with the minimal burden possible. Although none of the identified alternate sources appear to be sufficient to replace IURA, EPA believes that an alternate information source could provide sufficient information for a particular chemical. EPA is also willing to work with other agencies to perhaps resolve differences in the various information collection activities in an effort to reduce overall reporting burden on industry.
Additional discussion of the applicability of available data sources is found in “Summary of EPA's Responses to Public Comments Submitted in Response to Proposed TSCA Inventory Update Rule Amendments” (64 FR 46772) (Ref. 18) and in “Inorganic Chemicals: Sources of Information Suggested by Commenters to the Proposed Inventory Update Rule Amendments” (Ref. 32).
b.
One commenter stated that EPA could use the DOE data along with other supplemental information sources to generate the type of petroleum process stream information that IURA proposed to collect. Several commenters also stated that the proposed IURA reporting would be duplicative of DOE reporting for certain chemicals, particularly fuel oil #2 and kerosene, and that EPA should therefore fully exempt those chemicals from reporting under IURA.
EPA has investigated the information collection conducted by DOE through EIA forms EIA 64A, EIA 810, and EIA 816, and has determined that chemical substances are not sufficiently identified for EPA's purposes in the DOE reports. For example, many of the chemical substances in the DOE reports are identified by nomenclature other than the CAS nomenclature used by EPA for TSCA purposes, are identified in broad categories, or are not identified by CAS number. Many of the chemical names used by DOE are either generic or represent groups of chemicals. For example, distillate fuel oil, reported on EIA Form 810, may refer to several chemicals on the TSCA Inventory, such as fuel oil #2, fuel oil #4, or fuel oil #6. This lack of specific identifier information means that EPA and others cannot distinguish which information collected by DOE is attributable to which chemical. More specific identification is needed to attribute the appropriate hazard and physical and chemical properties to the petroleum stream.
The DOE information also lacks important exposure components and identifiers that are necessary for exposure and risk screening activities. For example, the DOE information does not contain the number of workers reasonably likely to be exposed to a chemical or the maximum concentration of the chemical. In addition, it may be difficult to discern from the DOE data if a petroleum process stream is used as a solvent in a consumer product or as a combustible fuel. This is an important distinction because the likelihood of exposure to a petroleum process stream depends on its use. These data are needed elements that will fill a vital data gap in chemical risk screening.
Several persons commented that there is no need to collect exposure-related data for petroleum process stream manufacturing operations because physical hazards existing at many sites currently necessitate extensive safety precautions that limit worker exposure. Discussed in more detail in Unit II.F.1.b.
c.
Commenters expressed support for the full exemption of the six natural gas streams listed in the proposed IURA. These commenters also recommended adding fuel oil #2, kerosene, methane, ethane, propane, butane, pentane, and hexane, and liquefied natural gas to the full exemption list. The commenters stated that an exemption is warranted for these chemicals because: (1) DOE already requires annual and monthly reports for the chemicals which contain the same information requested by EPA; (2) the chemicals are similar in chemical composition to the six chemicals EPA proposed to exempt; (3) their chemical structure and identity remain the same throughout processing; (4) a similar amount of data is available for these chemicals as for the six chemicals EPA proposed to exempt; and, (5) a similar number of TSCA reports are filed for these chemicals as for the six chemicals EPA proposed to exempt.
EPA has retained the exemption for certain forms of natural gas as proposed. Adequate IUR information has been collected on the six chemical substances to fulfill EPA's and other IUR information users' current needs. EPA will take action to revoke this exemption if circumstances warrant in the future.
Liquefied natural gas, which is a form of natural gas (CAS No. 8006-61-9), is covered under the natural gas exemption. EPA did not include ethane, methane, propane, butane, other paraffinic hydrocarbons, fuel oil #2, or kerosene in the list of substances included in the natural gas exemption because they are not just isolated components of natural gas but are also chemical substances which can be produced from other source materials, chemical process streams, feedstocks, or reactants. These alkanes have significant uses in chemical manufacturing, including the production of ammonia and methanol from synthesis gas derived from methane, thermal cracking of ethane/propane mixtures to produce ethylene, and vapor-phase oxidation of n-butane to produce maleic anhydride. At present, there is not a sufficient basis to conclude that data on all significant uses of these alkanes are adequate.
EPA did not rely on the data contained in the DOE reports discussed in Unit III.C.1.b. in its creation of the new exemption for certain forms of natural gas. While some useful information for these chemicals is included in the DOE reports, it is insufficient for exposure or risk screening (see Unit III.C.1.b.). Downstream processing and use exposure information collected through IURA for these chemicals will not duplicate information collected by DOE.
2.
In addition, commenters suggested classes of chemicals for exemption. EPA has determined that none of these suggested exemptions can be implemented at this time, as described in the remainder of this section.
a.
The Agency recognizes that a variety of voluntary and regulatory efforts to collect hazard data are underway, such as the voluntary HPV Challenge Program. However, the scope and expected output from the HPV Challenge Program differ markedly from those anticipated under IURA. The HPV Challenge Program centers on providing basic hazard data for HPV chemicals, most of which will also be IURA-reportable chemicals. The IURA focus is on gathering exposure-related information for moderate and high volume chemicals in a wide range of industrial operations, involving multiple sites and covering manufacturing, processing, and use of the chemical substances.
The Agency is unable to limit its IURA information collection efforts to HPV chemicals alone, for several reasons. The Agency could not know definitively which chemicals are HPV substances in any particular IURA reporting cycle as of that reporting year. A chemical substance meets the criteria for an HPV chemical by meeting a one million pound national production volume threshold, based upon the aggregate production volume in the nation (as reported to IUR). Production volumes can vary significantly over a 4-year reporting cycle, and it is not uncommon for chemicals to rise above or fall below the HPV threshold each reporting cycle. For instance, EPA used 1990 IUR reporting to identify approximately 2,800 HPV substances. An additional 500 substances which were not HPV chemicals in 1990 were identified as being HPV via the 1994 IUR production volume data. The IURA collection could be limited to the HPV Challenge Program chemicals (i.e., the baseline set of chemicals for the program, consisting of chemicals that were HPV according to 1990 IUR information). However, that restricts IURA's ability to supply screening level exposure information to only those HPV chemicals. This would severely limit the usefulness of IURA over time, as the universe of chemicals that were HPV in 1990 will not be the same universe of chemicals that are HPV in future years, and would compromise the Agency's broader responsibility for risk screening.
b.
c.
EPA disagrees that data collection efforts through the OECD and ICCA programs provide sufficient exposure information to replace IURA information. Data collection efforts under the auspices of OECD and ICCA concentrate on the development of hazard assessments and generally provide only a small fraction of the exposure-related data called for under IURA. A goal of the ICCA Program is to process chemical cases through OECD's HPV SIDS Program, which develops hazard information for the program chemicals. As hazard data do not change from year to year, the data collection supports a one-time report. The IURA will provide current exposure-related information for risk screenings and preliminary assessments. Exposure information, as collected under IURA, will vary from reporting year to reporting year and therefore needs to be collected on a continuing basis. While the OECD HPV SIDS Program does not specifically disallow the collection of exposure information, the program does leave such collection to the discretion of the sponsor country (Ref. 34). Exposure information available via SIDS is therefore generally not specific to U.S. uses and concerns.
d.
Metals present some unique issues regarding exposure potential, and the information that will be collected under IURA on metals will do much to improve EPA's and others' knowledge about the uses and exposures associated with these chemicals. Not all metal-containing products are pure metal. For example, metal powders used in fine arts, metal pastes used in repairs, and commercial metallic paints contain varying percentages of metals. In addition, although some metals in trace quantities, such as chromium, are essential nutrients to plants and/or animals, in greater exposure concentrations these same metals can be harmful.
Because metals are ubiquitous and can be present in a variety of physical forms, different routes of exposure are possible. Chronic exposure to solutions
EPA has exempted submitters that would otherwise be subject to IUR reporting from reporting with respect to chemicals that are imported in the form of an article (see 40 CFR 710.30(b) and § 710.50(b) of the regulatory text). However, submitters that manufacture a reportable chemical and incorporate it into an article will continue to be subject to reporting under the IURA.
The Agency reviewed a number of sources that provide information about metals production and characteristics, including USGS data specifically noted by commenters (Ref. 32). The information, although useful for depicting global mining and production of the major commercial metals, is not comparable to the national scale and domestic exposures data that will be provided under IURA. Further, because metals are subject chemicals in many EPA programs, including the Great Lakes Binational Toxics Strategy; the revised drinking water standards; the revised emission standards for secondary metal refinishers; and the Waste Minimization National Plan, current information about domestic metals production and use will benefit many EPA offices and programs.
As indicated previously, EPA will be reconsidering individual chemicals for applicability under the new partial exemption, and plans to identify and initiate dialogues with other federal agencies about collection activities that have the potential for generating additional federal paperwork burden reductions, particularly related to the IURA.
e.
Comments specific to these different groups of chemicals are addressed below.
i.
EPA disagrees with these comments. Review of the recent OSW Report to Congress on the subject of fossil fuel combustion byproducts (Ref. 35) indicates that these products can be hazardous to human health and the environment when mismanaged. These products not only typically contain heavy metals such as cadmium, chromium, lead, and mercury, but leachates from fuel combustion byproducts can contain significant concentrations of arsenic. Despite these concerns, OSW has decided to exempt these substances from regulation as hazardous waste when they are beneficially reused. While OSW was not able to identify damage cases or significant risks to human health or the environment associated with these types of beneficial uses based on available data, OSW plans to assess new information on risks as that information becomes available. The IURA will be instrumental in providing manufacturing, processing, and use data for fossil fuel combustion byproducts to enable OSW to monitor the potential risk associated with these chemical substances. Additionally, as with any chemical byproduct with a use, EPA in general needs information to be able to screen these chemicals for potential concerns outside of the OSW purview. Review of such contemporary data, as shared between OPPT and OSW, will allow EPA to make well-informed risk management decisions by constructing realistic screening level exposure profiles for these substances. These profiles could be adjusted as the production dynamics change between IURA reporting cycles. EPA believes the importance of accurate exposure-related data in formulating sound risk management decisions for fossil fuel combustion byproducts justifies the associated reporting burden.
ii.
EPA does not believe the suggested IURA exemptions for fertilizers and fertilizer constituents are warranted at this time. The Agency does not agree with industry comments citing a 1999 EPA OSW risk evaluation on “non-nutritive” components in fertilizers as adequate justification for classifying fertilizers as “safe,” and therefore eligible for exemption. The OSW report addresses trace quantities of metal contaminants in those fertilizers (i.e., the non-nutritive elements), not the fertilizers themselves. A review of basic hazard identification guides, such as the Merck Index, the Condensed Chemical Dictionary, and Dangerous Properties of Industrial Materials, shows that exposure to many fertilizers and fertilizer materials, including those cited in industry comments such as anhydrous ammonia, potassium sulfate, and urea, can cause both reversible and irreversible adverse health effects ranging from acute to chronic. The availability of IURA exposure-related data will allow for the risk screening of chemicals used as fertilizers and fertilizer constituents to extend beyond environmental effects and aid the screening of risks to workers, consumers, and the general population. The Agency therefore believes it is appropriate to require reporting for fertilizers under IURA.
iii.
The SNUR requirements in 40 CFR part 721 do not exempt substances encapsulated in a polymer matrix. Although chemicals incorporated into a polymer matrix are not subject to SNURs in certain limited circumstances, for example, when an individual SNUR specifically states that the SNUR requirements do not apply to such substances (see, e.g., 40 CFR 721.8160(a)), such chemicals are not otherwise generally exempt from SNUR requirements.
Although EPA appreciates the difficulty in ascertaining quantitative production information from manufacturers outside direct U.S. jurisdiction, exempting IUR reportable components encapsulated in a polymer matrix from IURA is not warranted. Not all polymers are inviolable. Additives such as colorants and lubricants, which can be hazardous to human health or the environment, can leach from the polymer matrix, resulting in subsequent exposures. Also, additives which are inherently insoluble in the polymer may migrate to the surface of the polymeric material and be released over time from the polymer. Under IURA, each non-exempted mixture component is reportable if imported above the stated thresholds. Reasonably ascertainable information can be used to estimate these import quantities.
iv.
The original IUR did not require reporting for chemicals manufactured for non-TSCA purposes. Similarly, in IURA, amounts of an otherwise IUR-reportable substance that are intended at the time of manufacture to be used for non-TSCA purposes (e.g., as a pesticide, as a drug) do not have to be reported. For example, if a company were to manufacture 300,000 lbs. of an IUR-reportable substance, 170,000 lbs. of which were intended at the time of manufacture to be sold as a drug precursor, and 130,000 lbs. of which were intended at the time of manufacture to be used for a TSCA purpose, only 130,000 lbs. of the substance would have to be reported under IUR. The company would not have to report the processing and use information described in § 710.52(c)(4) of the regulatory text for that chemical at that plant site, since the company did not manufacture a total of at least 300,000 lbs. of the chemical at the site for TSCA purposes. Many substances, such as the pesticide active ingredient pentachlorophenol, are also used in industrial and commercial applications regulated under TSCA. In those cases, the chemicals will continue to be reportable under IURA.
v.
According to FDA's Office of Premarket Approval (OPA), food use substances for FDA's purposes are those that are added directly to food, and could inadvertently contact and be incorporated into food because of use in packaging material or in food processing. FDA does not evaluate chemicals for environmental effects--only for human health effects. The chemicals subject to FDA rules are not inherently low hazard in many cases. For example, substances such as plasticizers, lubricants, release agents, acids (e.g., hydrochloric acid), boiler water additives, and solvents (e.g., acetone and hexane) are included as food use substances. Furthermore, even direct (i.e., listed) GRAS chemicals can be of concern when used at industrial concentrations, such as sulfuric acid. Thus, as is true with other chemical substances, food additives can present a risk to human health or the environment depending on use and the resulting exposure pathways. EPA does not believe a categorical exemption for chemicals that may be used as food additives is warranted at this time. Again, such chemicals are only reportable under IURA to the extent that they are intended at the time of manufacture to be used for TSCA purposes.
3.
EPA considered chemicals with aggregate, nationwide U.S. production and importation volumes of one million pounds or more (based on 1990 IUR data) for the HPV Challenge Program. That is, if one million pounds of a
The production volume that defines chemicals as HPV should not be confused with the 300,000 lbs. per year reporting threshold for processing and use data reporting in IURA. The 300,000 lbs. threshold applies to the amount manufactured at a single site and is not an aggregate, industry-wide production number. EPA is implementing the 300,000 lbs. per year reporting threshold for individual IUR submitters because it limits the increase in burden associated with the new IURA processing and use reporting requirements and it limits the number of chemicals for which exposure-related data will be reported to approximately 4,000. This number is consistent with the “several thousand chemicals” suggested by GAO in its 1995 report “EPA Should Focus Its Chemical Use Inventory on Suspected Harmful Substances” (Ref. 36), and ensures that exposure-related data will be reported for almost all HPV chemicals (defined by national aggregate production). Increasing the 300,000 lbs. threshold to one million lbs. would drastically undermine the Agency's collection of processing and use exposure-related data. The higher threshold would reduce the number of chemicals for which this information is submitted and eliminate processing and use data reporting on many of the HPV chemicals. The Agency would be left with very little information with which to conduct the needed screening- level assessments and the resulting prioritization would be less meaningful.
In the proposed IURA, EPA also solicited comments on the possibility of replacing the chemicals identified using the 300,000 lbs. annual production volume threshold (by site) with any of five other groups of chemicals. Those groups include: (1) A set of HPV chemicals that submitters identify as being produced nationwide in amounts of one million lbs. or more; (2) chemicals that are currently subject to testing under TSCA section 4 (i.e., test rules and enforceable consent agreements (ECAs)); (3) chemicals identified for voluntary testing; (4) chemicals designated for testing by the ITC; and (5) chemicals listed in the Agency's Master Testing List (the current edition is available at http://www.epa.gov/opptintr/chemtest/mtl.htm).
With respect to the possibility of limiting the collection of processing and use information to HPV chemicals identified by submitters, the Agency asked for comment on: (1) Whether submitters would be able to determine which chemicals have exceeded the nationally aggregated HPV threshold in a given submission period, especially given how frequently chemical production rises above and falls below this threshold from IUR submission period to submission period; (2) what additional burdens such a determination would place on submitters; and (3) whether IURA data would be less useful if processing and use data reporting were limited to HPV chemicals.
Many commenters favored use of the set of HPV chemicals in lieu of the proposed IURA reporting with the 300,000 lbs. threshold, yet none directly responded to the specific Agency questions. Commenters failed to take into account the added burden of aggregating chemical production to determine which substances are HPV chemicals. They also offered no justification for substituting the 300,000 lbs. plant site-specific threshold with a one million lbs. national aggregate threshold, beyond stating that relevant information is being provided already through other programs. Nor did they offer possible solutions to the problem of reliably aggregating production volumes.
EPA does not believe that submitters will be able to effectively aggregate nationwide production volumes. Aggregation is especially difficult in light of continual, market-driven changes in production and many submitters' interest in protecting individual plant site production volume information as CBI. Additionally, for a nationally aggregated one million lbs. threshold to be effective, it must be able to accommodate the frequency with which individual chemicals may rise above or fall below the HPV threshold criteria of a U.S. aggregate production volume of one million lbs. or more per year. For example, 17% of the chemicals which were HPVs according to data submitted under the 1990 IUR were not HPVs according to data submitted under the 1994 IUR.
1.
However, chemical substances which are naturally occurring and which, among other things, are unprocessed or processed only by manual, mechanical, or gravitational means (see 40 CFR 710.4(b)(1)) are currently excluded from IUR reporting and will continue to be excluded under IURA (see 40 CFR 710.46(a)(3)). For example, rocks, ores, and minerals are not IURA-reportable to the extent they are manufactured only via the means described in 40 CFR 710.4(b). The § 710.46(a)(3) exclusion is a process-specific exclusion rather than a chemical- or industry-specific one. Therefore, persons who manufacture a substance in a manner other than as specified in § 710.4(b) are required to report under IURA unless they or the substance they manufacture are otherwise excluded. As a result, many mined materials are listed on the TSCA Inventory because at least some of the time they are produced by other than manual, mechanical, or gravitational means.
Section 710.46(a)(3) intentionally exempts from IURA reporting any chemical substance which is isolated or removed from nature, for a commercial purpose, by any means listed in § 710.4(b). It also exempts any other chemical substance derived or separated from the substance originally removed from nature, provided such derivation involved only the means specified in § 710.4(b). For example, when using manual, mechanical, or gravitational processes to separate one or more substances from a naturally-occurring mixture, these isolated component substances are also considered naturally-occurring and excluded from reporting. However, any substance manufactured from a naturally occurring precursor substance via a chemical reaction is not considered naturally occurring and, therefore, not excluded from reporting under § 710.46(a)(3).
2.
“Known to or reasonably ascertainable by” is the current standard for data collection under which IUR operates and is the standard authorized by TSCA section 8(a). “Known to or reasonably ascertainable by” means all information in a person's possession or control, plus all information that a reasonable person similarly situated might be expected to possess, control, or know. The “known to or reasonably ascertainable by” standard is applicable to the information required under § 710.52(c)(1), (c)(2), and (c)(3) of the regulatory text.
“Readily obtainable” is a lesser standard EPA is applying to the reporting of information concerning the processing and use of chemicals subject to IURA (§ 710.52(c)(4) of the regulatory text). The readily obtainable standard is limited to information known by management and supervisory employees of the submitter, and does not require additional effort to collect information on processing or use of chemicals by others not under the control of the submitter. Although the Agency is requiring submitters to provide only information that it knows, EPA believes that in many cases submitters will possess some knowledge concerning use of chemicals sold by the submitter to their customers, even though the submitter does not control its customers' sites. For example, when a company markets the substances for certain end uses. EPA's experience with over 30,000 TSCA section 5 PMNs demonstrates that companies generally do know the intended ultimate use, as well as intervening processing steps, of their products. In choosing the readily obtainable standard, the Agency is lessening the burden on submitters compared to the “known to or reasonably ascertainable by” standard, while recognizing that the submitter is supplying data on uses of chemicals that are beyond his or her control. The standard for reporting information on processing and use of chemical substances under IURA is the same as the standard adopted in the PAIR, which was also promulgated under the authority of TSCA section 8(a). (See 40 CFR 712.7)
The Agency's intent under these regulations is to achieve balance and ensure that the submitter only claims as confidential that information which is legally entitled to confidential treatment. EPA believes that these amendments will discourage the assertion of invalid CBI claims by focusing submitter's attention more closely on their decision to make certain claims.
1.
EPA agrees that submitters will make CBI claims for the new data elements that are being added by these amendments, most likely resulting in a greater number of CBI claims overall. However, EPA is requiring reporting for most of the new data elements in ranges, a reporting method EPA believes will result in fewer CBI claims compared to reporting discrete numbers. Additionally, EPA is amending the IUR to encourage the assertion of only legally valid CBI claims, and to ensure that CBI claims are well thought out by the submitter. The IURA includes a new requirement to provide upfront substantiation of CBI claims for site identity. This requirement will minimize claims by prompting submitters to perform an initial evaluation of the need for and validity of a CBI claim for plant site identity, an essential data element. These efforts will greatly assist in limiting CBI claims to those that are legitimate.
EPA wishes to clarify that it is not attempting to discourage legitimate confidentiality claims; rather, the Agency intends only to discourage inappropriate claims. This allows the Agency to protect legitimate CBI while also increasing the amount of information available for public use.
EPA has information indicating the existence of inappropriate or no longer valid CBI claims. For instance, when EPA has selectively challenged CBI claims in the past, many of these claims have been amended by the companies to make the information available to the public. Additionally, OPPT's administrative record 00125, which contains state CBI data reviews, published articles, industry letters, and other papers discussing CBI issues, provides further indication that inappropriate or no longer valid CBI claims exist. For instance, the Georgia Department of Natural Resources reported in a 1996 CBI Data Review that IUR data identified as confidential was available in other non-confidential data bases (Ref. 37). The administrative record is in the same location as the Docket and is available by following the procedures identified in Unit I.B.1.
Some commenters suggested reducing the number of data elements that will be collected under IURA, perhaps using instead a format such as the one used by OECD for SIDS chemicals, which aggregates information for all manufacturers and thus protects company-specific information. EPA considered alternate reporting formats with different data elements, and has determined that the reporting of site-specific information by the individual sites is the best way to collect the information needed. EPA will continue to perform the aggregating function when providing the public with information that is subject to a site-specific CBI claim. Collecting only national aggregate values would drastically reduce the usefulness of the information to the Agency, even though it may reduce the number of CBI claims. The IUR is used to address both national needs and local issues. For example, IUR production volume information was used to identify the national list of High Production Volume (HPV) chemicals for the Agency's HPV Challenge Program (see http://www.epa.gov/opptintr/chemrtk/volchall.htm). Moreover, site-specific IUR information is used to secure a better overall understanding of activities at individual sites. This information is used for site-specific risk assessments for the use of federal, state and local entities.
b.
EPA agrees that it has a statutory obligation to protect information
c.
Despite these comments, the Agency has determined that it is worthwhile to require submitters to consider whether their production volumes, within ranges similar to those used for the original TSCA Inventory, warrant protection as CBI (EPA made adjustments to the original TSCA Inventory ranges by making the ranges consistent with the second reporting threshold of 300,000 lbs., as described in Unit II.F.5.d.). EPA recognizes that some submitters will make CBI claims for both the specific and the ranged production volume information. However, EPA believes that in many cases submitters will allow the release of ranged production volume information. This belief is supported by some industry organizations. For example, in a 1993 letter, a company suggested the use of the original Inventory production volume ranges for non-confidential reporting. While the company did state that “conceivably, a submitter could be able to justify a CBI claim for a range,” the conclusion was that many companies would be satisfied with non-confidential reporting (Ref. 11). These conclusions are further supported by EPA's experience with the original TSCA Inventory, where only 35% of production volume values reported were claimed CBI, compared to the typical claim level of 65% for production volumes under IUR.
d.
EPA does not believe that this will be a significant issue. The downstream processing and use information that some submitters will be required to provide under IURA is not tied to customer identities. Submitters will not report where or who their customers are or how much their individual customers produce. In addition, CBI claims can be made as necessary for any information provided on Form U.
2.
Under TSCA section 14(c), “a [confidential] designation under this paragraph shall be made in writing and in such manner as the Administrator may prescribe.” EPA is continuing to require that those reporting under IURA substantiate their chemical identity CBI claims, and is requiring under these amendments that submitters also substantiate any plant site identity CBI claims. Section 710.58 of the regulatory text requires submitters to substantiate these claims submitted under IUR by providing answers to specified questions. EPA has long required upfront substantiation for specified CBI claims under the authority specified in TSCA (see, e.g., 40 CFR 710.38(c) of the current regulatory text) and will continue to require upfront substantiation where appropriate.
The Agency is adding upfront substantiation requirements for plant site identity information because EPA has observed that, on occasion, plant site information has been claimed as confidential even though, for example, it was revealed in filings required under sections 311, 312, and 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. sections 11021 to 11023. EPA believes that many of these CBI claims are inappropriate and that the new substantiation requirement will reduce the occurrence of inappropriate claims. A decrease in the number of CBI claims under the new substantiation requirement would facilitate EPA's ability to make current plant site information available to other Federal agencies and the public because more information submitted under IUR could be released publicly.
Upfront substantiation of CBI claims imposes some additional burden, although this burden is not substantial. EPA's economic analysis for this rule estimates 0.2 to 0.3 hour per plant site reporting under IURA for the incremental costs of reporting all elements of plant site identity information. The burden of upfront substantiation for plant site identity CBI claims is included in this estimate.
b.
EPA believes that requiring responses to the list of substantiation questions in § 710.58 of the regulatory text is necessary to ensure that information submitted for confidential protection qualifies for that protection. The commenter's proposed questions, while providing the opportunity for a submitter to express its business reasons and preferences regarding the information, do not provide all of the necessary information to definitively evaluate the eligibility of the information for confidential treatment.
3.
EPA has considered these industry comments, and weighed the concerns expressed against the public's need for access to information on chemicals in commerce in the United States. While the Agency believes the requirement to reassert old claims of CBI is justified as a practical measure to ensure that information withheld meets the legal criteria and that the expressions of concern relating to burden associated with reassertion, appear to be the result of a misunderstanding of the practical aspects of the proposed reassertion requirement, the Agency is not finalizing the proposed reassertion
1.
EPA's experience with past IUR reporting demonstrates that the chemical industry is dynamic, with a 30% change in the number of chemicals reported from one submission period to the next. The specific chemicals that are reported or not reported in any single submission period change at a variety of production volumes; this change is by no means limited to lower production volume chemicals.
Although a chemical's hazards may be fully characterized, EPA needs up-to-date exposure information to stay current with developments and adequately screen chemicals for possible risks to human health and the environment. While the toxicity of a chemical does not change (although new information can modify the assessment or identify new concerns), a chemical's exposure profile can vary greatly over time. Human and/or environmental exposures to the substance can at one time be minor, but as uses change from industrial applications to consumer uses, or as production volumes increase, exposures also tend to increase. Because exposures and uses can and do change over time as technologies develop or innovations arise, updated exposure information is needed to maintain an adequate understanding of current exposures. EPA did consider one-time reporting for IURA processing and use data, but the information would quickly become out of date.
A primary goal of IURA is to provide a data base of exposure-related information which can be used for screening level purposes to identify chemicals for further assessment, as well as chemicals of lesser concern (see Unit III.A.1.). EPA intends to use other data sources and collection tools, as appropriate, once a chemical has been identified as a candidate for further assessment.
2.
EPA has retained the calendar year reporting cycle as proposed. By moving the collection to a calendar year basis, the IURA data collection becomes more compatible with other data bases such as the TRI. This compatibility increases the usefulness of the IURA collection by allowing IURA data to be combined with data from other collections. Generally, companies should be sufficiently familiar with their production that this provision should not present special challenges that are unaccounted for in the burden estimates provided by survey respondents, as described in the economic analysis.
Commenters raised a number of concerns about the economic analysis. In response, EPA has made a number of changes to make the analysis a more readable document and to incorporate changes made to the final IURA requirements.
1.
In response to these comments, EPA reviewed the burden analysis and, although the estimated burden was adjusted, determined that the comments do not warrant modifications to the Agency's general approach to the analysis. EPA based much of the burden analysis on a survey of 78 industry respondents (Ref. 7). In addition, EPA considered the burden associated with such programs as the UEIP (described in Unit III.A.1.), a voluntary project in which EPA collected information similar in some ways to IURA information. UEIP respondents provided estimates of the amount of time they used to complete the survey forms (Ref. 7). However, EPA did reassess the results of the burden survey and did make some changes to the analysis. The burden from the analysis associated with the proposed rule was $36 to $51 million in the first year, and $27 million to $41 million in future reporting years. Changes in the rule and methodology raised estimated costs of the final rule to between $72 and $87 million in the first reporting cycle, and $64 to $77 million in future reporting cycles. These changes are primarily due to revising the analysis from the survey data, revising the analysis to remove the reassertion burden, updating costs to year 2000 dollars, and updating the number of report submissions to incorporate the 1998 IUR data collection. These changes are discussed further in “Revised Economic Analysis for the Amended Inventory Update Rule” (Ref. 7).
a.
b.
2.
Compliance determination (the act of determining the need to comply with a regulation) occurs on a per-site basis. This means that all sites that report under IURA are assumed to incur the same average cost for determining compliance, regardless of the number of chemicals reported. Some small number of firms that are not required to report may incur some negligible costs in this regard, but EPA believes the costs to be relatively small given that it is standard business practice for a company to be aware of the volumes it produces. The existence of voluntary submitters does not imply that below-threshold compliance costs are non-zero; it simply indicates that some firms choose to respond to IUR when reporting is not required.
Another commenter determined that member companies in its organization would experience no savings from raising the threshold from 10,000 lbs. to 25,000 lbs. as no reports are eliminated. In 1994, EPA received approximately 3,800 reports for chemicals produced in quantities between 10,000 and 25,000 lbs. As a result, the Agency anticipates that a significant number of reports will be eliminated by raising the reporting threshold.
3.
4.
5.
The Agency primarily considered two non-regulatory alternatives. First, the Agency considered using publicly available information, as discussed in Unit III.A.3. The Agency found that the information to be collected through IURA was not publicly available and therefore this was not a viable option. Second, the Agency considered a voluntary approach to collecting this information, similar to the UEIP collection discussed in Unit III.A.1. However, information collected through a voluntary program may lack consistency, may not be sufficiently comprehensive, or may not occur on a recurring basis, and therefore would not fully serve the purposes of IURA information. Therefore, a voluntary approach was not a viable option.
The public version of the official record for this rulemaking has been established as described in Unit I.B.1. under docket ID number OPPT-2002-0054. This record includes the documents located in the docket as well as the documents that are referenced in those documents. The following is a listing of the documents that are specifically referenced in this final rule. These documents, and the documents referenced therein, are also included in the public version of the official record. Please note that some referenced documents are already publicly available and this list includes the relevant location information.
1. U.S. EPA, “Reducing Risk: Setting Priorities and Strategies for Environmental Protection,” Science Advisory Board, (SAB-EC-90-021), 1990.
2. National Academy of Public Administration, “Setting Priorities, Getting Results - A New Direction for EPA,” 1995.
3. Chemical Manufacturers Association, Synthetic Organic Chemical Manufacturers Association, U.S. EPA, Chemical Specialties Manufacturing Association, American Petroleum Institute, “Round 3 of the
4. American Petroleum Institute, “Petroleum Process Stream Terms Included in the Chemical Substances Inventory Under the Toxic Substances Control Act (TSCA),” Health and Safety Regulation Committee Task Force on Toxic Substances Control, February 1985.
5. USEPA, “Methodology Used for the Initial Selection of Chemicals for the Inventory Update Rule Amendments (IURA) ‘Low Current Interest’ Partial Reporting Exemption,” OPPT, July 24, 2002.
6. USEPA, “EPA Needs Exposure-Related Data: A Discussion of the Justification for Collecting Exposure-Related Data Through the IUR Amendments,” OPPT/EETD/EPAB, 1998.
7. USEPA, “Economic Analysis for the Amended Inventory Update Final Rule,” OPPT, August 2002.
8. USEPA, “Incremental Cost Estimates for IURA: Interagency Review Comparison and Five Year Reporting Cycle,” OPPT/EETD/EPAB, July 17, 2002.
9. USEPA, “Draft Instructions Manual for the 2006 Inventory Update Rule Reporting,” OPPT, August 2002.
10. USEPA, “Inventory Update Rule (IUR) Technical Support Document: Evaluation of Likelihood of Confidential Business Information Claims for Production Volume Information,” OPPT, August 26, 1996.
11. Letter from Mark N. Duvall, Union Carbide, to EPA, “Additional Comments of Union Carbide Corporation on EPA's Preliminary Actions to Reform TSCA Confidential Business Information, Docket No. OPPTS-00125,” August 31, 1993.
12. Letter from Stephen A. Newell, Occupational Safety and Health Administration, to Wardner G. Penberthy, EPA, October 15, 1996.
13. Letter from Paul A. Schulte, Ph.D., National Institute for Occupational Safety and Health, to Wardner G. Penberthy, EPA, October 8, 1996.
14. USEPA, “Inventory Update Rule (IUR) Amendment Technical Support Document: Exposure-Related Data Useful for Chemical Risk Screening,” Volumes 1 and 2, OPPT, July 19, 1996.
15. U.S. Census Bureau, North American Industrial Classification System (NAICS), http://www.census.gov/epcd/www/naics.html, 1999.
16. USEPA, “Preliminary Assessment Information Rule (PAIR) Database, Manufacturing Process Type/Release Analysis and Number of Workers/Production Quantity Analysis,” OPPT, September 26, 1996.
17. Standard Consumer Safety Inspection ASTM F963-96A (sec. 3.1-3.3).
18. USEPA, “Summary of EPA's Responses to Public Comments Submitted in Response to Proposed TSCA Inventory Update Rule Amendments (64 FR 46772),” OPPT/EETD, September 6, 2002.
19. USEPA, “IURA Data Use Plan,” OPPT/EETD, August 23, 2002.
20. USEPA, “A SAB Report: Improving the Use Cluster Scoring System, Recommendations for the Use Cluster Scoring System Prepared by the Environmental Engineering Committee,” Science Advisory Board, SAB-EEC-95-017, September 1995. Also available at www.epa.gov/sab/pdf/eec95017.pdf.
21. Letter from Michael A. Babich, U.S. Consumer Product Safety Commission, to Wardner G. Penberthy, EPA, June 24, 1996.
22. Letter from Robert Franklin, U.S. Consumer Product Safety Commission, to EPA, December 23, 1999.
23. Letter from Paul A. Schulte, Ph.D., National Institute for Occupational Safety & Health, to EPA, December 21, 1999.
24. General Accounting Office, “Toxic Chemicals: Long-Term Coordinated Strategy Needed to Measure Exposures in Humans,” GAO/HEHS-00-80, May 2, 2000.
25. Letter from Linda Greer, Ph.D., Natural Resources Defense Council, to Carol Browner, EPA, February 12, 1999.
26. USEPA, “Economic Analysis of Proposed Amendments to the TSCA Section 8 Inventory Update Rule,” OPPT/EETD/EPAB, March 1, 1999.
27. USEPA, “A Review of Existing Exposure-Related Data Sources and Approaches to Screening Chemicals: A Response to CMA,” OPPT, March 1999.
28. European Commission, “Technical Guidance Document in Support of Commission Directive 93/67/EEC on Risk Assessment for New Notified Substances and Commission Regulation (EC) No 1488/94 on Risk Assessment for Existing Substances; Part III.”
29. USEPA, `“Inventory Update Rule (IUR) Technical Support Document: Selection of Consumer and Commercial End-Use Categories,” OPPT, 1996.
30. Letter from the TSCA Interagency Testing Committee providing a response to an Interagency proposed rule review question, undated.
31. Letter from John DeYoung, Chief Scientist, U.S. Geological Survey, to Mary Ellen Weber, EPA, July 25, 2002.
32. USEPA, “Inorganic Chemicals: Sources of Information Suggested by Commenters to the Proposed Inventory Update Rule Amendments,” OPPT, June 2000.
33. Memorandum from Sandy Zavolta, U.S. EPA, to Heidi King, Office of Management and Budget, May 21, 1999.
34. OECD, “Guidance for Collection and Transmission of Exposure Information for SIDS Initial Assessment,” OECD SIDS Manual (Third Revision), Section 2.5, July 1997, available at http://www.epa.gov/opptintr/sids/sidsman.htm.
35. USEPA, “Report to Congress: Wastes from the Combustion of Fossil Fuels (EPA Docket #F-2000-FF2F-FFFFF) Public Comment Summary and Response Document,” OSW, April 25, 2000, available at http://www.epa.gov/epaoswer/other/fossil/ffc-resp.pdf.
36. General Accounting Office, “EPA Should Focus Its Chemical Use Inventory on Suspected Harmful Substances,” GAO/RCED-95-165, July 7, 1995.
37. Confidential Business Information Data Review, Georgia Department of Natural Resources, Docket entry 00125 B2a-010 filed June 19, 1996, page 4.
Under Executive Order 12866, entitled
In addition, EPA has prepared an economic analysis of the potential impacts of this action, which is contained in a document entitled
EPA estimates that these amendments will cost between $72 and $87 million in the first reporting cycle, and $64 to
Under these amendments, approximately 8,900 chemicals will be subject to reporting, and the Agency expects that it will receive approximately 26,800 submissions during the first submission period. In the first submission period, approximately 9,800 of those submissions (providing information on about 4,000 chemicals) will be full reports which include information found in Part III of revised reporting Form U. The remainder will report only company, site and chemical identification and manufacturing information (Parts I and II of revised Form U). In future submission periods with the addition of full reporting for inorganic chemicals, EPA expects to receive over 12,300 full forms, covering 4,600 chemicals. In order to keep the reporting burden as low as possible, EPA is requiring that certain information be reported in ranges, that only the top 10 NAICS codes be accounted for when reporting industrial processing and use information, and that only readily obtainable information in Part III of revised Form U be reported.
EPA analyzed the effects of a number of different alternatives for the rule, including variations in exemptions, different thresholds for both partial- (i.e., Parts I and II of revised Form U) and full-form (i.e., all parts of revised Form U) reporting, and various frequencies of collection. These options are explored further in the Economic Analysis (Ref. 6).
EPA considered continuing the existing full exemption from IUR reporting for inorganic chemicals and adding a full exemption for site-limited petroleum streams. EPA examined the effects of keeping the partial-form threshold at 10,000 lbs. and considered full-form thresholds of 100,000, 300,000, 500,000, and one million lbs., as well as a phased-in 100,000/500,000 full-form threshold. EPA also considered changes in the reporting cycle, such as a one-time collection, and a 2-year cycle.
EPA believes that this final rule represents an appropriate balance between the burden placed on industry to provide information and the Agency's need for that information to fill its statutory obligations and fulfill its mission under TSCA and, as part of that mission, to provide information needed by other agencies (OSHA, NIOSH, CPSC, etc.).
The costs of these amendments will be borne by two groups: the chemical industry and EPA. Industry costs are associated with complying with the regulation, while EPA costs are associated with administering the regulation and maintaining the collected data. In this rulemaking effort, EPA has made every attempt to balance data needs with collection costs and burden. Wherever possible, EPA has used exemptions or partial exemptions to reduce the number of reports that would potentially be filed by industry. EPA has provided a second threshold for reporting use information required in Part III of revised Form U, reducing the per report burden for submitters. Recognizing that this information will be used for screening level purposes, EPA has reduced the specificity of the information that will be required in three ways: (1) By requiring the reporting of only readily obtainable information for the processing and use exposure-related data; (2) by requiring that submitters report much of the information in ranges, reducing the need to generate specific estimates; and, (3) by requiring processing and use exposure-related information on only the top 10 uses/NAICS codes/IFCs, as determined by percent of the chemical's volume. These steps limit the amount of information required, reducing the time and effort spent by the chemical industry in complying with the amendments.
EPA assumes that the burden associated with reporting under IURA will decrease over time as industry's familiarity with the reporting rule increases and to the extent that the information being reported remains somewhat constant from one submission period to the next. Projected costs to EPA are relatively small and are estimated to be $576,000 in the first reporting year, and $270,000 in subsequent reporting years.
Substantial changes in the economic analysis have occurred since the economic analysis produced for the proposed rule, which is summarized in Unit XI. of the proposed rule (at 64 FR 46799). The economic analysis was revised primarily due to changes in the final rule and changes to the cost methodology that more fully reflect potential industry burden. The revised economic analysis in support of this final rule can be found in the public version of the official record for this rulemaking (Ref. 6).
Changes made since the proposal due to public comments or interagency review include deleting the average concentration data element, phasing-in full reporting for inorganic chemicals, adding a partial exemption for specific chemical substances for which the Agency has determined that the IURA processing and use information is of low current interest, and deleting the proposed CBI reassertion requirement. Changes made to the cost methodology include increasing burden estimates for reporting processing and use data. The increase in burden estimate was initiated in response to industry comment, and stemmed from differences in the survey instrument used to estimate costs of IURA in 1996, and the sample Form U in 1999.
Estimates for reporting processing and use data were revised upward after reviewing public comments and the survey data. Differences between the survey instrument and the proposed Form U required EPA to aggregate certain responses. After reading the comments, EPA is using more conservative assumptions in this process. Therefore, it is more likely that EPA cost estimates overestimate, rather than underestimate, actual costs.
The OMB has approved the information collection requirements contained in this rule under the provisions of the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
The information that will be reported under IURA will better enable EPA to screen thousands of chemical substances for potential risk. Risk screening is necessary in order to conserve limited Agency and industry resources by focusing risk assessment work on chemical substances for which some level of potential risk has been indicated. The new information that will be reported under this rule is critical to the risk screening process and is unavailable through other sources. Responses to this collection of information will be mandatory, pursuant to TSCA section 8(a), 15 U.S.C. 2607(a). The regulations codifying the reporting requirements appear at 40 CFR part 710. CBI claims may be made for all or part of the information that will be reported under IURA. This action includes new substantiation procedures for CBI claims regarding plant site identity (See § 710.58(d) in the regulatory text).
As a result of IURA, reporting sites will submit either a full report for a
Companies will continue to report under IURA once every 4 years, so the average annual IURA reporting burden and cost is calculated in the ICR as one quarter of the burden and cost in a reporting cycle. Thus, the results in the ICR differ slightly from those in the economic analysis prepared under Executive Order 12866, which calculates the annualized cost of multiple reporting cycles over a 20-year period. In addition, the economic analysis calculates the incremental increase in burden due to IURA, while the ICR calculates the total reporting and recordkeeping burden for IURA (i.e., the sum of the incremental IURA burden and the baseline IUR burden). Companies may continue to report for multiple chemicals on a single Form U (as revised). Companies generally submit one Form U per site, so the burden per Form U is approximately equivalent to the burden per site.
For the first reporting cycle, the annual average burden for organic chemical manufacturers is estimated to be 121.5 to 152.4 hours per site at a cost of $8,313 to $10,448 (reflecting an average of 5.1 partial reports and 3.8 full reports per site). For inorganic chemical manufacturers, the annual average burden is estimated at 43.3 to 66.1 hours per site at a cost of $2,936 to $4,547 (reflecting an average of 8.3 reports per site). These estimates include the time needed to review instructions; search data sources; gather and maintain the data needed; complete and review the collection of information; and transmit or otherwise disclose the information. The actual burden on any specific site may be different from this estimate depending on the complexity of the site, the number of IURA reportable chemicals at the site, and the profile of the site's operations. There will be approximately 2,500 submitters for organic chemicals (including petroleum process streams), and 500 submitters for inorganic chemicals. For the first reporting cycle, the total annual burden is estimated to be approximately 325,000 to 414,000 hours at a total estimated industry cost of $22.2 to $28.4 million per year.
Under the PRA, “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.
As part of the PRA approval renewal process, which occurs every 3 years and includes an opportunity for public review and comment prior to OMB review, EPA intends to evaluate this collection activity, particularly the new exemption process, in order to demonstrate the practical utility of IURA information collection activities. The Agency will provide information in the ICR renewal document that details the chemicals evaluated under the exemption process, the exemption requests received, and the Agency's decisions made, as well as provide information about the process elements and experiences.
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 currently approved ICR control numbers issued by OMB for various EPA regulations are listed in 40 CFR part 9 and 48 CFR chapter 15. EPA is amending the table in 40 CFR part 9 to list the OMB approval number for the information collection requirements contained in this final rule. This listing of the OMB control numbers and their subsequent codification in the CFR satisfies the display requirements of the PRA and OMB's implementing regulations at 5 CFR part 1320. This ICR was previously subject to public notice and comment prior to OMB approval. Due to the technical nature of the table, EPA finds that further notice and comment is unnecessary. As a result, EPA finds that there is “good cause” under section 553(b)(B) of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), to amend this table without further notice and comment.
Pursuant to section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601
Small entities include small businesses, small not-for-profit organizations, and small governmental jurisdictions (5 U.S.C. 601(6)). Because not-for-profit organizations and governmental jurisdictions will not be affected by this rule, “small entity” for purposes of this final rule is synonymous with “small business.” Section 601(3) of the RFA establishes as the default definition of small business the definition used in section 3 of the Small Business Act (15 U.S.C. 632) under which the Small Business Administration (SBA) establishes small business size standards (13 CFR 121.201). The RFA recognizes, however, that it may be appropriate at times for Federal agencies to use an alternate definition of small business. As a result, RFA section 601(3) provides that an Agency may establish a different definition of small business after consultation with the SBA Office of Advocacy and after notice and an opportunity for public comment. EPA established a different definition of small business, found in the existing IUR at 40 CFR 704.3, in accordance with these requirements. Manufacturers who meet the 40 CFR 704.3 definition of small business are generally exempted from IUR reporting in 40 CFR 710.29. This exemption is retained under these amendments in § 710.49 and was not reopened for comment. In general, EPA strives to minimize potential adverse impacts on small entities when developing regulations to achieve the environmental and human health protection goals of the statute and the Agency.
Despite the fact that small manufacturers that fully meet the 40 CFR 704.3 definition are generally exempt from reporting under IUR, and thus are not significantly impacted by IURA, EPA conducted an analysis of the potential impact for submitters that meet only part of the 40 CFR 704.3 definition. Specifically, an analysis of the potential impact was conducted only for those submitters that meet the first criterion in the 40 CFR 704.3 definition of “small manufacturer or importer,” i.e., total annual sales of less than $40 million, but that do not meet the second criterion, i.e., production or import volume of less than 100,000 pounds at all sites.
For small manufacturers of organic chemicals subject to reporting, the Agency estimates the impact to be 0.15% to 0.18% of sales. For small manufacturers of inorganic chemicals subject to reporting, the Agency estimates the impact to be 0.07% to 0.20% of sales.
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (Public Law 104-4), EPA has determined that this regulatory action does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or for the private sector in any 1 year. The analysis of the costs associated with this action are described in Unit V.A. In addition, EPA has determined that this rule does not significantly or uniquely affect small governments. Accordingly, this rule is not subject to the requirements of sections 202, 203, 204, and 205 of UMRA.
Executive Order 13132, entitled
This final rule does not have federalism implications, because it 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. Thus, Executive Order 13132 does not apply to this rule.
Under Executive Order 13084, entitled
If EPA complies by consulting, Executive Order 13084 requires EPA to provide to OMB, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”
This rule does not significantly or uniquely affect the communities of Indian tribal governments, nor does it impose substantial direct compliance costs on such communities. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.
On November 6, 2000, the President issued Executive Order 13175, entitled
This rule is not a “significant energy action” as defined in Executive Order 13211,
This rulemaking does not require special consideration pursuant to the terms of Executive Order 13045, entitled
This regulatory action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note). Section 12(d) of NTTAA 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, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA requires EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
Pursuant to Executive Order 12898, entitled
EPA has complied with Executive Order 12630, entitled
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, as required by section 3 of Executive Order 12988, titled
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Reporting and recordkeeping requirements.
Environmental protection, Chemicals, Hazardous materials, Reporting and recordkeeping requirements.
Environmental protection, Chemicals, Hazardous materials, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
1. Part 9 is amended as follows:
a. The authority citation for part 9 continues to read as follows:
7 U.S.C. 135
b. In § 9.1, the table is amended by revising the heading “Inventory Reporting Regulations” to read “TSCA Chemical Inventory Regulations”; removing the existing entry under the heading; and adding the following entries to read as follows:
2. Part 710 is amended as follows:
a. The authority citation for part 710 continues to read as follows:
15 U.S.C. 2607(a).
b. Revise the part heading and table of contents for part 710 to read as follows:
c. Sections 710.1 through 710.4 are designated as subpart A and the subpart heading is added to read as follows:
d. Revise § 710.1 to read as follows:
(a) This part establishes regulations governing reporting and recordkeeping by certain persons who manufacture, import, or process chemical substances for commercial purposes under section 8(a) of the Toxic Substances Control Act (15 U.S.C. 2607(a)) (TSCA). Section 8(a) authorizes the Administrator to require reporting of information necessary for administration of the Act and requires EPA to issue regulations for the purpose of compiling and keeping current an inventory of chemical substances manufactured or processed for a commercial purpose, as required by section 8(b) of the Act. Following an initial reporting period, EPA published an initial inventory of chemical substances manufactured, processed, or imported for commercial purposes. In accordance with section 8(b), EPA periodically amends the inventory to include new chemical substances which are manufactured or imported for a commercial purpose and reported under section 5(a)(1) of the Act. EPA also revises the categories of chemical substances and makes other amendments as appropriate.
(b) The regulations in this part apply to the activities associated with the compilation of the TSCA Chemical Inventory and the update of information on a subset of the chemical substances included on the Inventory. The Inventory Update regulations were
(c) Section 15(3) of TSCA makes it unlawful for any person to fail or refuse to submit information required under these reporting regulations. In addition, section 15(3) makes it unlawful for any person to fail to keep, and permit access to, records required by these regulations. Section 16 provides that any person who violates a provision of section 15 is liable to the United States for a civil penalty and may be criminally prosecuted. Pursuant to section 17, the Government may seek judicial relief to compel submission of section 8(a) information and to otherwise restrain any violation of section 15. (EPA does not intend to concentrate its enforcement efforts on insignificant clerical errors in reporting.)
(d) Each person who reports under these regulations must maintain records that document information reported under these regulations and, in accordance with the Act, permit access to, and the copying of, such records by EPA officials.
e. Remove § 710.2.
f. Add § 710.3 to subpart A to read as follows:
In addition to the definitions in § 704.3 of this chapter, the following definitions apply to this part:
(a) The following terms will have the meaning contained in the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 321
(b) The term
(c) The following terms will have the meaning contained in the Atomic Energy Act of 1954, 42 U.S.C. 2014
(d) The following definitions also apply to this part:
An
(1) Which is formed to a specific shape or design during manufacture,
(2) Which has end use function(s) dependent in whole or in part upon its shape or design during end use, and
(3) Which has either no change of chemical composition during its end use or only those changes of composition which have no commercial purpose separate from that of the article and that may occur as described in § 710.4(d)(5); except that fluids and particles are not considered articles regardless of shape or design.
(1) Any mixture,
(2) Any pesticide when manufactured, processed, or distributed in commerce for use as a pesticide,
(3) Tobacco or any tobacco product, but not including any derivative products,
(4) Any source material, special nuclear material, or byproduct material,
(5) Any pistol, firearm, revolver, shells, and cartridges, and
(6) Any food, food additive, drug, cosmetic, or device, when manufactured, processed, or distributed in commerce for use as a food, food additive, drug, cosmetic, or device.
(1) Between a place in a State and any place outside of such State, or
(2) Which affects trade, traffic, transportation, or commerce described in paragraph (1) of this definition.
(1) The person primarily liable for the payment of any duties on the merchandise, or
(2) An authorized agent acting on his/her behalf (as defined in 19 CFR 1.11).
(1) Which is intentionally removed from the equipment in which it is manufactured, and
(2) Which either is consumed in whole or in part in chemical reaction(s) used for the intentional manufacture of other chemical substance(s) or mixture(s), or is intentionally present for the purpose of altering the rate of such chemical reaction(s).
Note: The
(1) For commercial distribution, including for test marketing, or
(2) For use by the manufacturer, including use for product research and development, or as an intermediate.
(1) Any combination which occurs, in whole or in part, as a result of a chemical reaction if the combination could have been manufactured for commercial purposes without a chemical reaction at the time the chemical substances comprising the combination were combined and if, after the effective date or premanufacture notification requirements, none of the chemical substances comprising the combination is a new chemical substance, and
(2) Hydrates of a chemical substance or hydrated ions formed by association of a chemical substance with water.
(1) In the same form or physical state as, or in a different form or physical state from, that in which it was received by the person so preparing such substance or mixture, or
(2) As part of a mixture or article containing the chemical substance or mixture.
(1) For distribution in commerce, including for test marketing purposes, or
(2) For use as an intermediate.
(1) Are no greater than reasonably necessary for such purposes, and
(2) After the publication of the revised inventory, are used by, or directly under the supervision of, a technically qualified individual(s).
Note: Any chemical substances manufactured, imported, or processed in quantities less than 1,000 lbs. (454 kg) annually will be presumed to be manufactured, imported, or processed for research and development purposes. No person may report for the inventory any chemical substance in such quantities unless that person can certify that the substance was not manufactured, imported, or processed solely in small quantities for research and development, as defined in this section.
(1) Who because of his/her education, training, or experience, or a combination of these factors, is capable of appreciating the health and environmental risks associated with the chemical substance which is used under his/her supervision,
(2) Who is responsible for enforcing appropriate methods of conducting scientific experimentation, analysis, or chemical research in order to minimize such risks, and
(3) Who is responsible for the safety assessments and clearances related to the procurement, storage, use, and disposal of the chemical substance as may be appropriate or required within the scope of conducting the research and development activity. The responsibilities in this paragraph may be delegated to another individual, or other individuals, as long as each meets the criteria in paragraph (1) of this definition.
g. Section 710.4 is amended as follows:
i. In paragraphs (a), (c)(1), (c)(2), (c)(3), and the Note at the end of paragraph (d)(8), change the references to “§ 710.2”, “§ 710.2(h)”, “§ 710.2(q)”, “§ 710.2(y)”, and “§ 710.2(n)”, respectively to “§ 710.3(d)”.
ii. In paragraph (b)(2), change “shall” to “will”.
iii. In the Note to paragraph (d)(2), change “premanufacturing” to “premanufacture”.
iv. In paragraph (d)(5), change “photographic, films” to “photographic films”.
h. Sections 710.25 through 710.39 are designated as subpart B and the subpart heading is added to read as follows:
i. Add § 710.23 to subpart B to read as follows:
In addition to the definitions in § 704.3 of this chapter and § 710.3, the following definitions also apply to subpart B of this part.
j. Section 710.39 is amended as follows:
i. Revise the section heading to read “How do I submit the required information?”
ii. In paragraph (a), the second sentence is revised to read: “Copies of the Form U are available from EPA at the address set forth in paragraph (c) of this section and from the EPA Internet Home Page at http://www.epa.gov/oppt/iur/iur02/index.htm.”
iii. In the introductory text of paragraph (c), change “1994” to “1998”.
iv. In paragraph (c)(1), insert a period after “554-1404” and remove the remainder of the sentence.
v. In paragraph (c)(3), change “7408,” to “7408M,”.
vi. In paragraph (d), change “Document Control Officer” to “OPPT Document Control Officer” and change “7407,” to “7407M,”.
k. Add a new subpart C to read as follows:
In addition to the definitions in § 704.3 of this chapter and § 710.3, the following definitions also apply to subpart C of this part:
(1) Is the product commonly recognized (i.e., by a reasonable person) as being intended for children age 14 or younger?
(2) Does the manufacturer of the product state through product labeling or other written materials that the product is intended for or will be used by children age 14 or younger?
(3) Is the advertising, promotion, or marketing of the product aimed at children age 14 or younger?
Any chemical substance which is in the Master Inventory File at the beginning of a submission period described in § 710.53, unless the chemical substance is specifically excluded by § 710.46.
The following groups or categories of chemical substances are exempted from some or all of the reporting requirements of this subpart, with the following exception: A chemical substance described in paragraph (a)(1), (a)(2), or (a)(4), or (b) of this section is not exempted from any of the reporting requirements of this subpart if that substance is the subject of a rule
(a)
(1)
(ii) Any chemical substance which is identified in the 1985 edition of the Inventory or the Master Inventory File as siloxane and silicone, silsesquioxane, a protein (albumin, casein, gelatin, gluten, hemoglobin), an enzyme, a polysaccharide (starch, cellulose, gum), rubber, or lignin.
(iii) This exclusion does not apply to a polymeric substance that has been hydrolyzed, depolymerized, or otherwise chemically modified, except in cases where the intended product of this reaction is totally polymeric in structure.
(2)
(3)
(4)
(b)
(1)
(2)
(ii)
(A) Whether the chemical qualifies or has qualified in past IUR collections for the reporting of the information described in § 710.52(c)(4) (i.e., at least one site manufactures 300,000 pounds or more of the chemical).
(B) The chemical substance's chemical and physical properties or potential for persistence, bioaccumulation, health effects, or environmental effects (considered independently or together).
(C) The information needs of EPA, other federal agencies, tribes, states, and local governments, as well as members of the public.
(D) The availability of other complementary risk screening information.
(E) The availability of comparable processing and use information.
(F) Whether the potential risks of the chemical substance are adequately managed by EPA or another agency or authority.
(iii)
(A) Any person may request that EPA amend the chemical list in paragraph (b)(2)(iv) of this section. Your request must be in writing and must be submitted to the address provided in § 710.59(d). Requests must identify the chemical in question, as well as its CAS Number or other chemical identification number as identified in § 710.52(c)(3)(i). Your request should provide sufficient information for EPA to determine whether collection of the information in § 710.52(c)(4) for the chemical in question is of low interest. In preparing your request, please refer to the considerations outlined in paragraph (b)(2)(ii) of this section. If a request related to a particular chemical is resubmitted, any subsequent request must clearly identify new information contained in the request. EPA may request other information that it believes necessary to evaluate the request. EPA will issue a written response to each request within 120 days of receipt of the request, and will maintain copies of these responses in a public docket that will be established for each reporting cycle.
(B) As needed, the Agency will initiate rulemaking to make revisions to the list in paragraph (b)(2)(iv) of this section.
(C) To assist EPA in reaching a decision regarding a particular request prior to a given reporting year, requests must be submitted to EPA no later than 12 months prior to the start of the reporting year, i.e., by January 1, 2004, or by each January 1 at 4-year intervals thereafter.
(iv)
(3)
Except as provided in § § 710.49 and 710.50, the following persons are subject to the requirements of this subpart. Persons must determine whether they must report under this section for each chemical substance that they manufacture (including import) at an individual site.
(a)
(b)
A person described in § 710.48 is not subject to the requirements of this subpart if that person qualifies as a small manufacturer as that term is defined in § 704.3 of this chapter. Notwithstanding this exclusion, a
A person described in § 710.48 is not subject to the requirements of this subpart with respect to any chemical substance described in § 710.45 that the person solely manufactured or imported under the following circumstances:
(a) The person manufactured or imported the chemical substance described in § 710.45 solely in small quantities for research and development.
(b) The person imported the chemical substance described in § 710.45 as part of an article.
(c) The person manufactured the chemical substance described in § 710.45 in a manner described in § 720.30(g) or (h) of this chapter.
Any person who must report under this subpart, as described in § 710.48, must submit the information described in this section for each chemical substance described in § 710.45 that the person manufactured (including imported) for commercial purposes in an amount of 25,000 lbs. (11,340 kg) or more at any one site during calendar year 2005 or during the calendar year at 4-year intervals thereafter. (See § 710.48(b) for the “site” for importers). A separate form must be submitted for each chemical substance at each site for which the submitter is required to report. A submitter of information under this subpart must report information as described in paragraphs (c)(1), (c)(2), and (c)(3) of this section to the extent that such information is
(a)
(b)
(c)
(1)
(2)
(i) The name of a person who will serve as technical contact for the submitter company, and who will be able to answer questions about the information submitted by the company to EPA, the parent company name and Dun and Bradstreet Number, the contact person's full mailing address, the contact person's telephone number and the contact person's e-mail address.
(ii) The name and full street address of each site. A submitter under this subpart must include the appropriate Dun and Bradstreet Number for each plant site reported, and the county or parish (or other jurisdictional indicator) in which the plant site is located.
(3)
(i) The specific chemical name and CAS Number of each reportable chemical substance at each site. A submitter under this subpart may use an EPA-designated Accession Number for confidential substances, or a premanufacture notice (PMN) case number (see § 720.65 of this chapter) in lieu of a CAS Number when a CAS Number is not known to or reasonably ascertainable by the submitter. In addition to reporting the number itself, submitters must specify the type of number they are reporting by selecting from among the following codes:
(ii) A statement indicating, for each reportable chemical substance at each site, whether the substance is manufactured in the United States, imported into the United States, or both manufactured in the United States and imported into the United States.
(iii) A designation indicating, for each reportable chemical substance at each site, whether the substance is site-limited.
(iv) The total volume (in pounds) of each reportable chemical substance manufactured (including imported) at each site. This amount must be reported to two significant figures of accuracy provided that the reported figures are within plus or minus 10% of the actual volume.
(v) Any person claiming that the volume reported under paragraph (c)(3)(iv) of this section is confidential
(vi) The total number of workers reasonably likely to be exposed to each reportable chemical substance at each site. For each reportable substance at each site, the submitter must select from among the ranges of workers listed in the following table and report the corresponding code (i.e., W1 through W8):
(vii) The maximum concentration, measured by percentage of weight, of each reportable chemical substance at the time it is sent off-site from each site. If the chemical is site-limited, you must report the maximum concentration, measured by percentage of weight, of the reportable chemical substance at the time it is reacted on-site to produce a different chemical substance. This information must be reported regardless of the physical form(s) in which the substance is sent off-site/reacted on-site. For each substance at each site, select the maximum concentration of the substance from among the ranges listed in the following table and report the corresponding code (i.e., M1 through M5):
(viii) The physical form(s) of the reportable chemical substance as it is sent off-site from each site. If the chemical is site-limited, you must report the physical form(s) of the reportable chemical substance at the time it is reacted on-site to produce a different chemical substance. For each substance at each site, the submitter must report as many physical forms as apply from among the physical forms listed below:
(A) Dry powder.
(B) Pellets or large crystals.
(C) Water- or solvent-wet solid.
(D) Other solid.
(E) Gas or vapor.
(F) Liquid.
(ix) Submitters must report the percentage, rounded off to the closest 10%, of total production volume of the reportable chemical substance, reported in response to paragraph (c)(3)(iv) of this section, that is associated with each physical form reported under paragraph (c)(3)(viii) of this section. The sum of the percentages reported must not add up to more than 100%.
(4) Specific information for chemical substances manufactured in amounts of 300,000 lbs. or more. In addition to the information required under paragraphs (c)(1), (c)(2), and (c)(3) of this section, the following information must be reported for each reportable chemical substance manufactured (including imported) in an amount of 300,000 lbs. (136,077 kg) or more at any one site during calendar year 2005 or during the calendar year at 4-year intervals thereafter. Persons subject to paragraph (c)(4) of this section must report the information described in paragraphs (c)(4)(i) and (c)(4)(ii) of this section for each reportable chemical substance at sites under their control and at sites that receive a reportable chemical substance from the submitter directly or indirectly (including through a broker/distributor, from a customer of the submitter, etc.). Information reported in response to this paragraph must be reported only to the extent that it is readily obtainable by the submitter. If information responsive to a given data requirement under this paragraph, including information in the form of an estimate, is not readily obtainable, the submitter is not required to respond to the requirement.
(i) Industrial processing and use information.
(A) A designation indicating the type of industrial processing or use operation(s) at each site that receives a reportable substance from the submitter site directly or indirectly (whether the recipient site(s) are controlled by the submitter site or not). For each chemical substance, report the letters which correspond to the appropriate processing or use operation(s). A particular designation may need to be reported more than once, to the extent that a submitter reports more than one NAICS code (under paragraph (c)(4)(i)(B) of this section) that applies to a given designation under this paragraph.
(B) The five-digit North American Industrial Classification System (NAICS) codes which best describe the industrial activities associated with each industrial processing or use operation reported under paragraph (c)(4)(i)(A) of this section. Information about how to find these codes is provided in the instruction booklet available from EPA at the address set forth in § 710.59. A particular NAICS code may need to be reported more than once, to the extent that a submitter reports more than one industrial function code (under paragraph (c)(4)(i)(C) of this section) that applies to a given NAICS code under this paragraph.
(C) For each NAICS code reported under paragraph (c)(4)(i)(B) of this section, code(s) from the following list must be selected to designate the industrial function category(ies) that best represents the specific manner in which the chemical substance is used. A particular industrial function category may need to be reported more than once, to the extent that a submitter reports more than one industrial processing or use operation/NAICS code
(D) The estimated percentage, rounded off to the closest 10%, of total production volume of the reportable chemical substance associated with each combination of industrial processing or use operation, NAICS code and industrial function category. Where a particular combination of industrial processing or use operation, NAICS code and industrial function category accounts for 5% or less of the submitter's site's total production volume of a reportable chemical substance, the percentage must not be rounded off to zero % if the production volume attributable to that industrial processing or use operation, NAICS code and industrial function category combination is 300,000 lbs. (136,077 kg) or more during the reporting year. Instead, in such a case, submitters must report the percentage, rounded off to the closest 1%, of the submitter's site's total production volume of the reportable chemical substance associated with the particular combination of industrial processing or use operation, NAICS code and industrial function category.
(E) For each combination of industrial processing or use operation, NAICS code and industrial function category, the submitter must estimate the number of sites at which each reportable chemical substance is processed or used. For each combination associated with each substance, the submitter must select from among the ranges of sites listed in the following table and report the corresponding code (i.e., S1 through S7):
(F) For each combination of industrial processing or use operation, NAICS code and industrial function category, the submitter must estimate the number of workers reasonably likely to be exposed to each reportable chemical substance. For each combination associated with each substance, the submitter must select from among the worker ranges listed in paragraph (c)(3)(vi) of this section and report the corresponding code (i.e., W1 though W8).
(ii)
(A) Using the codes listed in this paragraph, submitters must designate the commercial and consumer product category or categories that best describe the commercial and consumer products in which each reportable chemical substance is used (whether the recipient site(s) are controlled by the submitter site or not). If more than 10 codes apply to a chemical substance, submitters need only report the 10 codes for the chemical substance that cumulatively represent the largest percentage of the submitter's production volume for that chemical, measured by weight:
(B) Submitters must determine, within each commercial and consumer product category reported under paragraph (c)(4)(ii)(A) of this section, whether any amount of each reportable chemical substance manufactured (including imported) by the submitter is present in (for example, a plasticizer chemical used to make pacifiers) or on (for example, as a component in the paint on a toy) any consumer products intended for use by children up to the age of 14, regardless of the concentration of the substance remaining in or on the product. Submitters must select from the following options: the chemical substance is used in or on any consumer products intended for use by children, the chemical substance is not used in or on any consumer products intended for use by children, or information as to whether the chemical substance is used in or on any consumer products intended for use by children is not readily obtainable.
(C) The estimated percentage, rounded off to the closest 10%, of the submitter's site's total production volume of the reportable chemical substance associated with each commercial and consumer product
(D) Where the reportable chemical substance is used in commercial or consumer products, the estimated typical maximum concentration, measured by weight, of the chemical substance in each commercial and consumer product category reported under paragraph (c)(4)(ii)(A) of this section. For each substance in each commercial and consumer product category reported under paragraph (c)(4)(ii)(A) of this section, submitters must select from among the ranges of concentrations listed in the table in paragraph (c)(3)(vii) of this section and report the corresponding code (i.e., M1 through M5).
All information reported to EPA in response to the requirements of this subpart must be submitted during an applicable submission period. The first submission period is from August 25, 2006, to December 23, 2006. Subsequent recurring submission periods are from August 25 to December 23 at 4-year intervals after the first submission period. Any person described in § 710.48(a) must report during each submission period for each chemical substance described in § 710.45 that the person manufactured (including imported) during the preceding calendar year (i.e., the “reporting year”).
(a)
(b)
Each person who is subject to the reporting requirements of this subpart must maintain records that document any information reported to EPA. Records relevant to reporting during a submission period must be retained for a period of 5 years beginning with the effective date of that submission period.
(a) Any person submitting information under this subpart may assert a business confidentiality claim for the information at the time it is submitted. These claims will apply only to the information submitted with the claim. New confidentiality claims, if necessary, must be asserted with regard to information submitted during the next submission period. Guidance for asserting confidentiality claims is provided in the instruction booklet identified in § 710.59. Information claimed as confidential in accordance with this section will be treated and disclosed in accordance with the procedures in part 2 of this chapter.
(b) Chemical identity. A person may assert a claim of confidentiality for the chemical identity of a specific chemical substance only if the identity of that substance is treated as confidential in the Master Inventory File as of the time the report is submitted for that substance under this subpart. The following steps must be taken to assert a claim of confidentiality for the identity of a reportable chemical substance:
(1) The submitter must submit with the report detailed written answers to the following questions signed and dated by an authorized official.
(i) What harmful effects to your competitive position, if any, do you think would result from the identity of the chemical substance being disclosed in connection with reporting under this subpart? How could a competitor use such information? Would the effects of disclosure be substantial? What is the causal relationship between the disclosure and the harmful effects?
(ii) How long should confidential treatment be given? Until a specific date, the occurrence of a specific event, or permanently? Why?
(iii) Has the chemical substance been patented? If so, have you granted licenses to others with respect to the patent as it applies to the chemical substance? If the chemical substance has been patented and therefore disclosed through the patent, why should it be treated as confidential?
(iv) Has the identity of the chemical substance been kept confidential to the extent that your competitors do not know it is being manufactured or imported for a commercial purpose by anyone?
(v) Is the fact that the chemical substance is being manufactured (including imported) for a commercial purpose available to the public, for example in technical journals, libraries, or State, local, or Federal agency public files?
(vi) What measures have been taken to prevent undesired disclosure of the fact that the chemical substance is being manufactured (including imported) for a commercial purpose?
(vii) To what extent has the fact that this chemical substance is manufactured (including imported) for commercial purposes been revealed to others? What precautions have been taken regarding these disclosures? Have there been public disclosures or disclosures to competitors?
(viii) Does this particular chemical substance leave the site of manufacture (including import) in any form, e.g., as product, effluent, emission? If so, what measures have been taken to guard against the discovery of its identity?
(ix) If the chemical substance leaves the site in a product that is available to the public or your competitors, can the substance be identified by analysis of the product?
(x) For what purpose do you manufacture (including import) the substance?
(xi) Has EPA, another Federal agency, or any Federal court made any pertinent confidentiality determinations regarding this chemical substance? If so, please attach copies of such determinations.
(2) If any of the information contained in the answers to the questions listed in paragraph (b)(1) of this section is asserted to contain confidential business information, the submitter must clearly identify the information that is claimed confidential by marking the specific information on each page with a label such as “confidential business information,” “proprietary,” or “trade secret.”
(c) Site identity. A submitter may assert a claim of confidentiality for a site only if the linkage of the site with a reportable chemical is confidential and not publicly available. The following steps must be taken to assert a claim of confidentiality for a site identity:
(1) The submitter must submit with the report detailed written answers to the following questions signed and dated by an authorized official:
(i) Has site information been linked with a chemical identity in any other Federal, state or local reporting scheme? For example, is the chemical identity linked to a facility in a filing under the Emergency Planning and Community Right-to-Know Act (EPCRA) section 311, namely through a Material Safety Data Sheet (MSDS)? If so, identify all such schemes. Was the linkage claimed as confidential in any of these instances?
(ii) What harmful effect, if any, to your competitive position do you think would result from the identity of the site and the chemical substance being disclosed in connection with reporting under this subpart? How could a competitor use such information? Would the effects of disclosure be substantial? What is the causal relationship between the disclosure and the harmful effects?
(2) If any of the information contained in the answers to the questions listed in paragraph (c)(1) of this section is asserted to contain confidential business information, the submitter must clearly identify the information that is claimed confidential by marking the specific information on each page with a label such as “confidential business information,” “proprietary,” or “trade secret.”
(d) If no claim of confidentiality is indicated on the reporting form submitted to EPA under this subpart, or if confidentiality claim substantiation required under paragraphs (c) and (d) of this section is not submitted with the reporting form, EPA may make the information available to the public without further notice to the submitter.
(a)
(b)
(c)
(1)
(2)
(3)
(4)
(d)
3. Part 723 is amended as follows:
a. The authority citation for part 723 continues to read as follows:
15 U.S.C. 2604.
b. In § 723.175, revise paragraph (b)(3) to read as follows:
(b) Definitions. * * *
(3) The terms
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Emergency rule; groundfish fishery management measures for January through February 2003; request for comments.
NMFS announces the January through February 2003 management measures for groundfish taken in the U.S. exclusive economic zone (EEZ) and state waters off the coasts of Washington, Oregon, and California. Management measures for January through February 2003 are intended to prevent overfishing; rebuild overfished species; minimize incidental catch and discard of overfished and depleted stocks; provide equitable harvest opportunity for both recreational and commercial sectors; and, within the commercial fisheries, allow achievement of harvest guidelines and limited entry and open access allocations to the extent practicable.
Effective January 1, 2003, through February 28, 2003. Comments must be received no later than 5 p.m, local time (l.t.) on February 6, 2003.
Send comments to D. Robert Lohn, Administrator, Northwest Region (Regional Administrator), NMFS, 7600 Sand Point Way N.E., Bldg. 1, Seattle, WA 98115-0070, or fax to 206-526-6736; or Rodney McInnis, Acting Administrator, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213, or fax to 562-980-4047. Comments will not be accepted if submitted via e-mail or Internet. Information relevant to this rule, which includes environmental assessment/regulatory impact review/initial regulatory flexibility analysis (EA/RIR), is available for public review during business hours at the office the Pacific Fishery Management Council (Council), at 7700 NE Ambassador Place, Portland, OR 97220, phone: 503-820-2280. Additional reports referred to in this document may also be obtained from the Council.
Yvonne deReynier or Becky Renko (Northwest Region, NMFS), phone: 206-526-6140; fax: 206-526-6736 and; e-mail:
This emergency rule also is accessible via the Internet at the Office of the
The Pacific Coast groundfish fishery management plan (FMP) requires that fishery specifications for groundfish be annually evaluated, and revised as necessary, that optimum yields (OYs) be specified for species or species groups in need of particular protection, and that management measures designed to achieve the OYs be published in the
Throughout 2002, the Council has been developing revisions to its specifications and management measures process, through proposed Amendment 17 to the FMP. Among other procedural changes, Amendment 17 would revise the NMFS publication process for the specifications and management measures. Historically, the Council has developed annual specifications and management measures in a public two-meeting process (formerly at its September and November meetings) followed by a NMFS final action published in the
Amendment 17 was recently adopted by the Council, but has not yet been submitted for NMFS for approval. NMFS must still comply with the Court′s Order for a public notice and comment period on the 2003 specifications and management measures. The Council had its initial meeting regarding these measures in June, and finalized its 2003 specifications and management measures recommendations at its September 9-13, 2002, meeting in Portland, OR. The Council could not act earlier in the year because the new science upon which the specifications and management measures were based was not ready until June. For 2003, the Council has recommended implementing depth-based management measures, with large closed areas intended to prevent vessels from operating in waters where overfished species are commonly found. NMFS and the Council felt that these management changes were significant enough to warrant analysis via an environmental impact statement (EIS). An EIS is a National Environmental Policy Act (NEPA) analysis document that requires a series of public review and comment periods at different document drafting stages. Given the complexity of the annual specifications and management measures package and the need for EIS-related public review periods, NMFS did not have enough time to publish a proposed rule on the Council's recommendations, receive public comments, and implement a final rule by January 1, 2003. Thus, NMFS is publishing this emergency rule under the Magnuson-Stevens Act emergency authority at section 305(c), which finalizes and makes effective the groundfish management measures for January 1 through February 28, 2003.
Absent a final rule by January 1, 2003, management measures for January and February 2003 would revert to those that were in place for January-February 2002. There are several species for which reverting to a management regime without depth-based closures at the beginning of the year could result in either exceeding the annual commercial OYs or very early attainment of OYs during the year. While these circumstances could jeopardize manager's ability to keep landings within rebuilding targets for some species, they could also lead to significant foregone revenue from other
NMFS implemented an emergency rule on September 10, 2002 (67 FR 57973, September 13, 2002), that opened trawling north of 40°10′ N. lat. inshore of 100 fm (183 m) and offshore of 250 fm (457 m), while leaving a large area closed to protect overfished species. Without these depth-based management measures, the northern trawl fishery would have closed entirely for September-December 2002 in order to protect darkblotched rockfish, an overfished species. NMFS expects that failing to implement depth-based management measures for January-February 2003 could similarly jeopardize fisheries participation later in the fishing year.
Specifications and management measures proposed for March-December 2003 in the Proposed Rules section of this issue of the
The Council adopted Amendment 17 during its October 28 - November 1, 2002, meeting in Foster City, CA. With that schedule, NMFS expects to review Amendment 17 for final implementation in early 2003, which will formalize a rulemaking process that will allow adequate time for both the Council′s recommendations development and NEPA process and NMFS notice and comment process on specifications and management measure packages. These anticipated process changes should reduce the need for future management measure implementation via emergency rule.
For the reasons stated above, the Assistant Administrator for Fisheries, NOAA (Assistant Administrator or AA), concurs with the Council′s recommendations and announces the following management actions for January 1 through February 28, 2003.
The following definitions and provisions apply to the 2003 management measures, unless otherwise specified in a subsequent
(1)
(a) A per-trip limit is the total allowable amount of a groundfish species or species group, by weight, or by percentage of weight of legal fish on board, that may be taken and retained, possessed, or landed per vessel from a single fishing trip.
(b) A daily trip limit is the maximum amount that may be taken and retained, possessed, or landed per vessel in 24 consecutive hours, starting at 0001 hours l.t. Only one landing of groundfish may be made in that 24-hour period. Daily trip limits may not be accumulated during multiple day trips.
(c) A weekly trip limit is the maximum amount that may be taken and retained, possessed, or landed per vessel in 7 consecutive days, starting at 0001 hours l.t. on Sunday and ending at 2400 hours l.t. on Saturday. Weekly trip limits may not be accumulated during multiple week trips. If a calendar week includes days within two different months, a vessel is not entitled to two separate weekly limits during that week.
(d) A cumulative trip limit is the maximum amount that may be taken and retained, possessed, or landed per vessel in a specified period of time without a limit on the number of landings or trips, unless otherwise specified. The cumulative trip limit periods for limited entry and open access fisheries, which start at 0001 hours l.t. and end at 2400 hours l.t., are as follows, unless otherwise specified:
(i) The 2-month periods are: January 1-February 28, March 1-April 30, May 1-June 30, July 1-August 31, September 1-October 31, and, November 1-December 31.
(ii) One month means the first day through the last day of the calendar month.
(iii) One week means 7 consecutive days, Sunday through Saturday.
(2)
(3)
(4)
(5)
(6)
(a)
(b)
(c)
(d)
(i) The minimum size for headed sablefish, which corresponds to 20 inches (51 cm) tl for whole fish, is 14 inches (36 cm).
(ii) The conversion factor established by the state where the fish is or will be landed will be used to convert the processed weight to round weight for purposes of applying the trip limit. (The conversion factor currently is 1.6 in Washington, Oregon, and California. However, the state conversion factors may differ; fishers should contact fishery enforcement officials in the State where the fish will be landed to determine that State′s official conversion factor.)
(e)
(i)
(ii)
(A)
(B)
(7)
(8)
(9)
(10)
(11)
(12)
(a)
(b)
(c)
(d)
(i) If a vessel takes and retains minor slope rockfish north of 38° N. lat., that vessel is also permitted to take and retain, possess or land splitnose rockfish up to its cumulative limit south of 38° N. lat., even if splitnose rockfish were a part of the landings from minor slope rockfish taken and retained north of 38° N. lat. [Note: A vessel that takes and retains minor slope rockfish on both sides of the management line in a single cumulative limit period is subject to the more restrictive cumulative limit for minor slope rockfish during that period.]
(ii) If a vessel takes and retains minor slope rockfish south of 38° N. lat., that vessel is also permitted to take and retain, possess or land Pacific ocean perch (POP) up to its cumulative limit north of 38° N. lat., even if POP were a part of the landings from minor slope rockfish taken and retained south of 38° N. lat. [Note: A vessel that takes and retains minor slope rockfish on both sides of the management line in a single cumulative limit period is subject to the more restrictive cumulative limit for minor slope rockfish during that period.]
(iii) If a vessel takes and retains minor shelf rockfish south of 40°10′ N. lat., that vessel is also permitted to take and retain, possess, or land yellowtail rockfish up to its cumulative limits north of 40°10′ N. lat., even if yellowtail rockfish is part of the landings from minor shelf rockfish taken and retained south of 40°10′ N. lat. Widow rockfish is included in overall shelf rockfish limits for all gear groups. [Note: A vessel that takes and retains minor shelf rockfish on both sides of the management line in a single cumulative limit period is subject to the more restrictive cumulative limit for minor shelf rockfish during that period.]
(e)
(f)
(13)
(a) For vessels with a limited entry permit:
(i) Coastwide widow rockfish, canary rockfish, darkblotched rockfish, yelloweye rockfish, shortbelly rockfish, minor nearshore rockfish, minor shelf rockfish, minor slope rockfish, shortspine and longspine thornyhead, Dover sole, arrowtooth flounder, rex sole, petrale sole, arrowtooth flounder, other flatfish, lingcod, sablefish, and Pacific whiting [Note: Although both yelloweye and darkblotched rockfish are considered minor rockfish managed under the minor shelf and minor slope rockfish complexes, respectively, they have separate OYs and therefore must be sorted by species.]
(ii) North of 40°10′ N. lat.- POP, yellowtail rockfish, and, for fixed gear, black rockfish and blue rockfish;
(iii) South of 40°10′ N. lat.- minor shallow nearshore rockfish, minor deeper nearshore rockfish, chilipepper rockfish, bocaccio rockfish, splitnose rockfish, and Pacific sanddabs.
(b) For open access vessels (vessels without a limited entry
permit):
(i) Coastwide-widow rockfish, canary rockfish, darkblotched rockfish, yelloweye rockfish, minor nearshore rockfish, minor shelf rockfish, minor slope rockfish, Dover sole, arrowtooth flounder, petrale sole, rex sole, other flatfish, lingcod, sablefish, Pacific whiting, and Pacific sanddabs;
(ii) North of 40°10′ N. lat.- black rockfish, blue rockfish, POP, yellowtail rockfish;
(iii) South of 40°10′ N. lat.- minor shallow nearshore rockfish, minor deeper nearshore rockfish, chilipepper rockfish, bocaccio rockfish, splitnose rockfish;
(iv) South of Point Conception--thornyheads.
(14)
(a)
(b)
(ii)
(iii)
(iv)
(c)
(d)
(15)
(a) For a vessel in the “B” platoon, cumulative trip limit periods begin on the 16th of the month at 0001 hours, l.t., and end at 2400 hours, l.t., on the 15th of the month. Therefore, the management measures announced herein that are effective on January 1, 2003, for the “A” platoon will be effective on January 16, 2003, for the “B” platoon. The effective date of any inseason changes to the cumulative trip limits also will be delayed for 2 weeks for the “B” platoon, unless otherwise specified.
(b) A vessel authorized to operate in the “B” platoon may take and retain, but may not land, groundfish from January 1, 2003, through January 15, 2003.
(c) A vessel authorized to operate in the “B” platoon will have the same cumulative trip limits for the November 16, 2003, through December 31, 2003, period as a vessel operating in the “A” platoon has for the November 1, 2002, through December 31, 2002 period.
(16)
(17)
(18)
(19)
(a)
48°00′ N. lat.; 124°59′ W. long.;
48°00′ N. lat.; 125°18′ W. long.;
48°04′ N. lat.; 124°59′ W. long.;
48°04′ N. lat.; 125°18′ W. long.;
48°04′ N. lat.; 125°11′ W. long.;
48°04′ N. lat.; 125°18′ W. long.;
48°18′ N. lat.; 125°11′ W. long.;
48°18′ N. lat.; 125°18′ W. long.;
and connecting back to 48°00′ N. lat.; 124°59′ W. long.
(b)
(c)
(i) The trawl RCA is closed to limited entry groundfish trawl fishing coastwide and to open access exempted trawl fishing (except for pink shrimp trawling) south of 40°10′ N. lat. Fishing with limited entry groundfish trawl gear is prohibited within the trawl RCA north of 40°10′ N. lat. and fishing with any trawl gear is prohibited within the trawl RCA south of 40°10′ N. lat., unless that vessel is trawling for pink shrimp. Coastwide, it is unlawful to take and retain, possess, or land groundfish taken with limited entry groundfish trawl gear in the trawl RCA. South of 40°10′ N. lat., it is unlawful to take and retain, possess, or land any species of fish taken with any type of trawl gear in the trawl RCA. Trawl vessels may transit through the trawl RCA, with or without groundfish on board, provided all groundfish trawl gear is stowed either: (1) below deck; or (2) if the gear cannot readily be moved, in a secured and covered manner, detached from all
(ii) Between the U.S. border with Canada and 40°10′ N. lat., the trawl RCA is defined along an eastern, inshore boundary approximating 100 fm (183 m) in January through June and October through December, and approximating 75 fm (137 m) in July and August. Between 40°10′ N. lat. and 34°27′ N. lat., the trawl RCA is defined along an eastern, inshore boundary approximating 50 fm (91 m) in January and February and 60 fm (110 m) in March through December. Between 34°27′ N. lat. and the U.S. border with Mexico, along the mainland coast of California, the trawl RCA is defined along an eastern, inshore boundary approximating 100 fm (183 m) throughout the year. Between 34°27′ N. lat. and the U.S. border with Mexico, adjacent to the islands offshore of California, the trawl RCA is defined along an inshore boundary approximating 20 fm (37 m) throughout the year. Boundary coordinates are provided below at paragraph (e) of this section.
(iii) Between the U.S. border with Canada and 38° N. lat., the trawl RCA is defined along a western, offshore boundary approximating 250 fm (457 m) in March through October, and approximating 250 fm (457 m) with some modifications to provide open areas to allow winter petrale sole fishing in January, February, November, and December. Between 38° N. lat. and the U.S. border with Mexico, the trawl RCA is defined along a western, offshore boundary approximating 150 fm (274 m) throughout the year. Boundary coordinates are provided below at paragraph (e) of this section.
(d)
(i) The non-trawl RCA is closed to non-trawl gear (limited entry or open access longline and pot or trap, open access hook-and-line, pot or trap, gillnet, set net, trammel net and spear) fishing for groundfish. Fishing with non-trawl gear is prohibited within the non-trawl gear RCA. It is unlawful to take and retain, possess, or land groundfish taken with non-trawl gear in the non-trawl gear RCA. Limited entry fixed gear and open access non-trawl gear vessels may transit through the non-trawl gear RCA, with or without groundfish on board. These restrictions do not apply to vessels fishing for species other than groundfish with non-trawl gear. If a vessel fishes in an RCA, it may not participate in any fishing on that trip that is inconsistent with the restrictions that apply within the RCA. For example, if a vessel participates in the salmon troll fishery within the RCA, the vessel cannot on the same trip participate in the sablefish fishery outside of the RCA.
(ii) Between the U.S. border with Canada and 46°16′ N. lat., the non-trawl gear RCA extends to the shoreline. Between 46°16′ N. lat. and 40°10′ N. lat., the non-trawl gear RCA is defined along an eastern, inshore boundary approximating 27 fm (49 m) throughout the year. Between 40°10′ N. lat. and the U.S. border with Mexico, the non-trawl gear RCA is defined along an eastern, inshore boundary approximating 20 fm (37 m) throughout the year, except as provided for between Point Fermin (33°41′ N. lat.; 118°18′ W. long.) and the Newport South Jetty (33°36′ N .lat.; 117° 51′ W. long.) Between a line drawn due south from Point Fermin, CA (33°41′ N. lat.; 118°18′ W. long.) and a line drawn due west from the Newport South Jetty (33°36′ N .lat.; 117° 51′ W. long.,) vessels fishing with hook-and-line and/or trap (or pot) gear may operate from shore to a boundary line approximating 50 fm (91 m) in the months of July and August. Boundary coordinates are provided below at paragraph (e) of this section.
(iii) Between the U.S. border with Canada and 40°10′ N. lat., the non-trawl gear RCA is defined along a western, offshore boundary approximating 100 fm (183 m) throughout the year. Between 40°10′ N. lat. and the U.S. border with Mexico, the trawl RCA is defined along a western, offshore boundary approximating 150 fm (274 m) throughout the year. Boundary coordinates are provided below at paragraph (e) of this section.
(e)
(i) The 27-fm (49-m) depth contour used between 46°16′ N. lat. and 40°10′ N. lat. as an eastern boundary for the non-trawl RCA is defined by straight lines connecting all of the following points in the order stated:
(1) 46°16.00′ N. lat., 124°12.39′ W. long.;
(2) 46°14.85′ N. lat., 124°12.39′ W. long.;
(3) 46°3.95′ N. lat., 124°3.64′ W. long.;
(4) 45°43.14′ N. lat., 124°0.17′ W. long.;
(5) 45°23.33′ N. lat., 124°1.99′ W. long.;
(6) 45°9.54′ N. lat., 124°1.65′ W. long.;
(7) 44°39.99′ N. lat., 124°8.67′ W. long.;
(8) 44°20.86′ N. lat., 124°10.31′ W. long.;
(9) 43°37.11′ N. lat., 124°14.91′ W. long.;
(10) 43°27.54′ N. lat., 124°18.98′ W. long.;
(11) 43°20.68′ N. lat., 124°25.53′ W. long.;
(12) 43°15.08′ N. lat., 124°27.17′ W. long.;
(13) 43°6.89′ N. lat., 124°29.65′ W. long.;
(14) 43°1.02′ N. lat., 124°29.70′ W. long.;
(15) 42°52.67′ N. lat., 124°36.10′ W. long.;
(16) 42°45.96′ N. lat., 124°37.95′ W. long.;
(17) 42°45.80′ N. lat., 124°35.41′ W. long.;
(18) 42°38.46′ N. lat., 124°27.49′ W. long.;
(19) 42°35.29′ N. lat., 124°26.85′ W. long.;
(20) 42°31.49′ N. lat., 124°31.40′ W. long.;
(21) 42°29.06′ N. lat., 124°32.24′ W. long.;
(22) 42°14.26′ N. lat., 124°26.27′ W. long.;
(23) 42°4.86′ N. lat., 124°21.94′ W. long.;
(24) 42°0.10′ N. lat., 124°20.99′ W. long.;
(25) 42°0.00′ N. lat., 124°21.03′ W. long.;
(26) 41°56.33′ N. lat., 124°20.34′ W. long.;
(27) 41°50.93′ N. lat., 124°23.74′ W. long.;
(28) 41°41.83′ N. lat., 124°16.99′ W. long.;
(29) 41°35.48′ N. lat., 124°16.35′ W. long.;
(30) 41°23.51′ N. lat., 124°10.48′ W. long.;
(31) 41°4.62′ N. lat., 124°14.44′ W. long.;
(32) 40°54.28′ N. lat., 124°13.90′ W. long.;
(33) 40°40.37′ N. lat., 124°26.21′ W. long.;
(34) 40°34.03′ N. lat., 124°27.36′ W. long.;
(35) 40°28.88′ N. lat., 124°32.41′ W. long.;
(36) 40°24.82′ N. lat., 124°29.56′ W. long.;
(37) 40°22.64′ N. lat., 124°24.05′ W. long.;
(38) 40°18.67′ N. lat., 124°21.90′ W. long.;
(39) 40°14.23′ N. lat., 124°23.72′ W. long.; and
(40) 40°10.00′ N. lat., 124°17.22′ W. long.;
(ii) The 75-fm (137-m) depth contour used north of 40°10′ N. lat. as an eastern boundary for the trawl RCA in the months of July and August is defined by straight lines connecting all of the following points in the order stated:
(1) 48°14.58′ N. lat., 125°42.47′ W. long.;
(2) 48°20.26′ N. lat., 125°23.03′ W. long.;
(3) 48°23.00′ N. lat., 124°50.00′ W. long.;
(4) 48°17.10′ N. lat., 124°54.82′ W. long.;
(5) 48°05.10′ N. lat., 124°59.40′ W. long.;
(6) 48°04.98′ N. lat., 125°10.02′ W. long.;
(7) 47°54.00′ N. lat., 125°04.98′ W. long.;
(8) 47°44.52′ N. lat., 125°00.00′ W. long.;
(9) 47°42.00′ N. lat., 124°58.98′ W. long.;
(10) 47°35.52′ N. lat., 124°55.50′ W. long.;
(11) 47°22.02′ N. lat., 124°44.40′ W. long.;
(12) 47°16.98′ N. lat., 124°45.48′ W. long.;
(13) 47°10.98′ N. lat., 124°48.48′ W. long.;
(14) 47°04.98′ N. lat., 124°49.02′ W. long.;
(15) 46°57.98′ N. lat., 124°46.50′ W. long.;
(16) 46°54.00′ N. lat., 124°45.00′ W. long.;
(17) 46°48.48′ N. lat., 124°44.52′ W. long.;
(18) 46°40.02′ N. lat., 124°36.00′ W. long.;
(19) 46°34.09′ N. lat., 124°27.03′ W. long.;
(20) 46°24.64′ N. lat., 124°30.33′ W. long.;
(21) 46°19.98′ N. lat., 124°36.00′ W. long.;
(22) 46°18.14′ N. lat., 124°34.26′ W. long.;
(23) 46°18.72′ N. lat., 124°22.68′ W. long.;
(24) 46°14.64′ N. lat., 124°22.54′ W. long.;
(25) 46°11.08′ N. lat., 124°30.74′ W. long.;
(26) 46°4.28′ N. lat., 124°31.49′ W. long.;
(27) 45°55.97′ N. lat., 124°19.95′ W. long.;
(28) 45°44.97′ N. lat., 124°15.96′ W. long.;
(29) 45°43.14′ N. lat., 124°21.86′ W. long.;
(30) 45°34.44′ N. lat., 124°14.44′ W. long.;
(31) 45°15.49′ N. lat., 124°11.49′ W. long.;
(32) 44°57.31′ N. lat., 124°15.03′ W. long.;
(33) 44°43.90′ N. lat., 124°28.88′ W. long.;
(34) 44°28.64′ N. lat., 124°35.67′ W. long.;
(35) 44°25.31′ N. lat., 124°43.08′ W. long.;
(36) 44°17.15′ N. lat., 124°47.98′ W. long.;
(37) 44°13.67′ N. lat., 124°54.41′ W. long.;
(38) 43°56.85′ N. lat., 124°55.32′ W. long.;
(39) 43°57.50′ N. lat., 124°41.23′ W. long.;
(40) 44°1.79′ N. lat., 124°38.00′ W. long.;
(41) 44°2.16′ N. lat., 124°32.62′ W. long.;
(42) 43°58.15′ N. lat., 124°30.39′ W. long.;
(43) 43°53.25′ N. lat., 124°31.39′ W. long.;
(44) 43°35.56′ N. lat., 124°28.17′ W. long.;
(45) 43°21.84′ N. lat., 124°36.07′ W. long.;
(46) 43°19.73′ N. lat., 124°34.86′ W. long.;
(47) 43°9.38′ N. lat., 124°39.30′ W. long.;
(48) 43°7.11′ N. lat., 124°37.66′ W. long.;
(49) 42°56.27′ N. lat., 124°43.29′ W. long.;
(50) 42°45.00′ N. lat., 124°41.50′ W. long.;
(51) 42°39.72′ N. lat., 124°39.11′ W. long.;
(52) 42°32.88′ N. lat., 124°40.13′ W. long.;
(53) 42°32.30′ N. lat., 124°39.04′ W. long.;
(54) 42°26.96′ N. lat., 124°44.31′ W. long.;
(55) 42°24.11′ N. lat., 124°42.16′ W. long.;
(56) 42°21.10′ N. lat., 124°35.46′ W. long.;
(57) 42°14.72′ N. lat., 124°32.30′ W. long.;
(58) 42°9.24′ N. lat., 124°32.04′ W. long.;
(59) 42°1.89′ N. lat., 124°32.70′ W. long.;
(60) 42°0.03′ N. lat., 124°32.02′ W. long.;
(61) 42°0.00′ N. lat., 124°32.02′ W. long.;
(62) 41°46.18′ N. lat., 124°26.60′ W. long.;
(63) 41°29.22′ N. lat., 124°28.04′ W. long.;
(64) 41°9.62′ N. lat., 124°19.75′ W. long.;
(65) 40°50.71′ N. lat., 124°23.80′ W. long.;
(66) 40°43.35′ N. lat., 124°29.30′ W. long.;
(67) 40°40.24′ N. lat., 124°29.86′ W. long.;
(68) 40°37.50′ N. lat., 124°28.68′ W. long.;
(69) 40°34.42′ N. lat., 124°29.65′ W. long.;
(70) 40°34.74′ N. lat., 124°34.61′ W. long.;
(71) 40°31.70′ N. lat., 124°37.13′ W. long.;
(72) 40°25.03′ N. lat., 124°34.77′ W. long.;
(73) 40°23.58′ N. lat., 124°31.49′ W. long.;
(74) 40°23.64′ N. lat., 124°28.35′ W. long.;
(75) 40°22.53′ N. lat., 124°24.76′ W. long.;
(76) 40°21.46′ N. lat., 124°24.86′ W. long.;
(77) 40°21.74′ N. lat., 124°27.63′ W. long.;
(78) 40°19.76′ N. lat., 124°28.15′ W. long.;
(79) 40°18.00′ N. lat., 124°25.38′ W. long.;
(80) 40°18.54′ N. lat., 124°22.94′ W. long.;
(81) 40°15.55′ N. lat., 124°25.75′ W. long.;
(82) 40°16.06′ N. lat., 124°30.48′ W. long.;
(83) 40°15.75′ N. lat., 124°31.69′ W. long.; and
(84) 40°10.00′ N. lat., 124°21.28′ W. long.
(iii) The 100-fm (183-m) depth contour used north of 40°10′ N. lat. as an eastern boundary for the trawl RCA and as a western boundary for the non-trawl RCA is defined by straight lines connecting all of the following points in the order stated:
(1) 48°15.00′ N. lat., 125°41.00′ W. long.;
(2) 48°14.00′ N. lat., 125°36.00′ W. long.;
(3) 48°09.50′ N. lat., 125°40.50′ W. long.;
(4) 48°08.00′ N. lat., 125°38.00′ W. long.;
(5) 48°05.00′ N. lat., 125°37.25′ W. long.;
(6) 48°02.60′ N. lat., 125°34.70′ W. long.;
(7) 47°59.00′ N. lat., 125°34.00′ W. long.;
(8) 47°57.26′ N. lat., 125°29.82′ W. long.;
(9) 47°59.87′ N. lat., 125°25.81′ W. long.;
(10) 48°01.08′ N. lat., 125°24.53′ W. long.;
(11) 48°02.08′ N. lat., 125°22.98′ W. long.;
(12) 48°02.97′ N. lat., 125°22.89′ W. long.;
(13) 48°04.47′ N. lat., 125°21.75′ W. long.;
(14) 48°06.11′ N. lat., 125°19.33′ W. long.;
(15) 48°07.95′ N. lat., 125°18.55′ W. long.;
(16) 48°09.00′ N. lat., 125°18.00′ W. long.;
(17) 48°11.31′ N. lat., 125°17.55′ W. long.;
(18) 48°14.60′ N. lat., 125°13.46′ W. long.;
(19) 48°16.67′ N. lat., 125°14.34′ W. long.;
(20) 48°18.73′ N. lat., 125°14.41′ W. long.;
(21) 48°19.98′ N. lat., 125°13.24′ W. long.;
(22) 48°22.95′ N. lat., 125°10.79′ W. long.;
(23) 48°21.61′ N. lat., 125°02.54′ W. long.;
(24) 48°23.00′ N. lat., 124°49.34′ W. long.;
(25) 48°17.00′ N. lat., 124°56.50′ W. long.;
(26) 48°06.00′ N. lat., 125°00.00′ W. long.;
(27) 48°04.62′ N. lat., 125°01.73′ W. long.;
(28) 48°04.84′ N. lat., 125°04.03′ W. long.;
(29) 48°06.41′ N. lat., 125°06.51′ W. long.;
(30) 48°06.00′ N. lat., 125°08.00′ W. long.;
(31) 48°07.28′ N. lat., 125°11.14′ W. long.;
(32) 48°03.45′ N. lat., 125°16.66′ W. long.;
(33) 47°59.50′ N. lat., 125°18.88′ W. long.;
(34) 47°58.68′ N. lat., 125°16.19′ W. long.;
(35) 47°56.62′ N. lat., 125°13.50′ W. long.;
(36) 47°53.71′ N. lat., 125°11.96′ W. long.;
(37) 47°51.70′ N. lat., 125°09.38′ W. long.;
(38) 47°49.95′ N. lat., 125°06.07′ W. long.;
(39) 47°49.00′ N. lat., 125°03.00′ W. long.;
(40) 47°46.95′ N. lat., 125°04.00′ W. long.;
(41) 47°46.58′ N. lat., 125°03.15′ W. long.;
(42) 47°44.07′ N. lat., 125°04.28′ W. long.;
(43) 47°43.32′ N. lat., 125°04.41′ W. long.;
(44) 47°40.95′ N. lat., 125°04.14′ W. long.;
(45) 47°39.58′ N. lat., 125°04.97′ W. long.;
(46) 47°36.23′ N. lat., 125°02.77′ W. long.;
(47) 47°34.28′ N. lat., 124°58.66′ W. long.;
(48) 47°32.17′ N. lat., 124°57.77′ W. long.;
(49) 47°30.27′ N. lat., 124°56.16′ W. long.;
(50) 47°30.60′ N. lat., 124°54.80′ W. long.;
(51) 47°29.26′ N. lat., 124°52.21′ W. long.;
(52) 47°28.21′ N. lat., 124°50.65′ W. long.;
(53) 47°27.38′ N. lat., 124°49.34′ W. long.;
(54) 47°25.61′ N. lat., 124°48.26′ W. long.;
(55) 47°23.54′ N. lat., 124°46.42′ W. long.;
(56) 47°20.64′ N. lat., 124°45.91′ W. long.;
(57) 47°17.99′ N. lat., 124°45.59′ W. long.;
(58) 47°18.20′ N. lat., 124°49.12′ W. long.;
(59) 47°15.01′ N. lat., 124°51.09′ W. long.;
(60) 47°12.61′ N. lat., 124°54.89′ W. long.;
(61) 47°08.22′ N. lat., 124°56.53′ W. long.;
(62) 47°08.50′ N. lat., 124°54.95′ W. long.;
(63) 47°01.92′ N. lat., 124°57.74′ W. long.;
(64) 47°01.14′ N. lat., 124°59.35′ W. long.;
(65) 46°58.48′ N. lat., 124°57.81′ W. long.;
(66) 46°56.79′ N. lat., 124°56.03′ W. long.;
(67) 46°58.01′ N. lat., 124°55.09′ W. long.;
(68) 46°55.07′ N. lat., 124°54.14′ W. long.;
(69) 46°59.60′ N. lat., 124°49.79′ W. long.;
(70) 46°58.72′ N. lat., 124°48.78′ W. long.;
(71) 46°54.45′ N. lat., 124°48.36′ W. long.;
(72) 46°53.99′ N. lat., 124°49.95′ W. long.;
(73) 46°54.38′ N. lat., 124°52.73′ W. long.;
(74) 46°52.38′ N. lat., 124°52.02′ W. long.;
(75) 46°48.93′ N. lat., 124°49.17′ W. long.;
(76) 46°41.50′ N. lat., 124°43.00′ W. long.;
(77) 46°34.50′ N. lat., 124°28.50′ W. long.;
(78) 46°29.00′ N. lat., 124°30.00′ W. long.;
(79) 46°20.00′ N. lat., 124°36.50′ W. long.;
(80) 46°18.00′ N. lat., 124°38.00′ W. long.;
(81) 46°17.00′ N. lat., 124°35.50′ W. long.;
(82) 46°17.00′ N. lat., 124°22.50′ W. long.;
(83) 46°15.02′ N. lat., 124°23.77′ W. long.;
(84) 46°12.00′ N. lat., 124°35.00′ W. long.;
(85) 46°10.50′ N. lat., 124°39.00′ W. long.;
(86) 46°8.90′ N. lat., 124°39.11′ W. long.;
(87) 46°0.97′ N. lat., 124°38.56′ W. long.;
(88) 45°57.04′ N. lat., 124°36.42′ W. long.;
(89) 45°54.29′ N. lat., 124°40.02′ W. long.;
(90) 45°47.19′ N. lat., 124°35.58′ W. long.;
(91) 45°41.75′ N. lat., 124°28.32′ W. long.;
(92) 45°34.16′ N. lat., 124°24.23′ W. long.;
(93) 45°27.10′ N. lat., 124°21.74′ W. long.;
(94) 45°17.14′ N. lat., 124°17.85′ W. long.;
(95) 44°59.51′ N. lat., 124°19.34′ W. long.;
(96) 44°49.30′ N. lat., 124°29.97′ W. long.;
(97) 44°45.64′ N. lat., 124°33.89′ W. long.;
(98) 44°33.00′ N. lat., 124°36.88′ W. long.;
(99) 44°28.20′ N. lat., 124°44.72′ W. long.;
(100) 44°13.16′ N. lat., 124°56.36′ W. long.;
(101) 43°56.34′ N. lat., 124°55.74′ W. long.;
(102) 43°56.47′ N. lat., 124°34.61′ W. long.;
(103) 43°42.73′ N. lat., 124°32.41′ W. long.;
(104) 43°30.92′ N. lat., 124°34.43′ W. long.;
(105) 43°17.44′ N. lat., 124°41.16′ W. long.;
(106) 43°7.04′ N. lat., 124°41.25′ W. long.;
(107) 43°3.45′ N. lat., 124°44.36′ W. long.;
(108) 43°3.90′ N. lat., 124°50.81′ W. long.;
(109) 42°55.70′ N. lat., 124°52.79′ W. long.;
(110) 42°54.12′ N. lat., 124°47.36′ W. long.;
(111) 42°43.99′ N. lat., 124°42.38′ W. long.;
(112) 42°38.23′ N. lat., 124°41.25′ W. long.;
(113) 42°33.02′ N. lat., 124°42.38′ W. long.;
(114) 42°31.89′ N. lat., 124°42.04′ W. long.;
(115) 42°30.08′ N. lat., 124°42.67′ W. long.;
(116) 42°28.27′ N. lat., 124°47.08′ W. long.;
(117) 42°25.22′ N. lat., 124°43.51′ W. long.;
(118) 42°19.22′ N. lat., 124°37.92′ W. long.;
(119) 42°16.28′ N. lat., 124°36.11′ W. long.;
(120) 42°5.65′ N. lat., 124°34.92′ W. long.;
(121) 42°0.00′ N. lat., 124°35.27′ W. long.;
(122) 42°00.00′ N. lat., 124°35.26′ W. long.;
(123) 41°47.04′ N. lat., 124°27.64′ W. long.;
(124) 41°32.92′ N. lat., 124°28.79′ W. long.;
(125) 41°24.17′ N. lat., 124°28.46′ W. long.;
(126) 41°10.12′ N. lat., 124°20.50′ W. long.;
(127) 40°51.41′ N. lat., 124°24.38′ W. long.;
(128) 40°43.71′ N. lat., 124°29.89′ W. long.;
(129) 40°40.14′ N. lat., 124°30.90′ W. long.;
(130) 40°37.35′ N. lat., 124°29.05′ W. long.;
(131) 40°34.76′ N. lat., 124°29.82′ W. long.;
(132) 40°36.78′ N. lat., 124°37.06′ W. long.;
(133) 40°32.44′ N. lat., 124°39.58′ W. long.;
(134) 40°24.82′ N. lat., 124°35.12′ W. long.;
(135) 40°23.30′ N. lat., 124°31.60′ W. long.;
(136) 40°23.52′ N. lat., 124°28.78′ W. long.;
(137) 40°22.43′ N. lat., 124°25.00′ W. long.;
(138) 40°21.72′ N. lat., 124°24.94′ W. long.;
(139) 40°21.87′ N. lat., 124°27.96′ W. long.;
(140) 40°21.40′ N. lat., 124°28.74′ W. long.;
(141) 40°19.68′ N. lat., 124°28.49′ W. long.;
(142) 40°17.73′ N. lat., 124°25.43′ W. long.;
(143) 40°18.37′ N. lat., 124°23.35′ W. long.;
(144) 40°15.75′ N. lat., 124°26.05′ W. long.;
(145) 40°16.75′ N. lat., 124°33.71′ W. long.;
(146) 40°16.29′ N. lat., 124°34.36′ W. long.; and
(147) 40°10.00′ N. lat., 124°21.12′ W. long.
(iv) The 250-fm (457-m) depth contour used north of 38° N. lat. for March through October as a western boundary for the trawl RCA is defined by straight lines connecting all of the following points in the order stated:
(1) 48°14.68′ N. lat., 125°42.10′ W. long.;
(2) 48°12.83′ N. lat., 125°39.71′ W. long.;
(3) 48°13.00′ N. lat., 125°39.00′ W. long.;
(4) 48°12.73′ N. lat., 125°38.87′ W. long.;
(5) 48°12.43′ N. lat., 125°39.12′ W. long.;
(6) 48°11.83′ N. lat., 125°40.01′ W. long.;
(7) 48°11.78′ N. lat., 125°41.70′ W. long.;
(8) 48°10.62′ N. lat., 125°43.41′ W. long.;
(9) 48°09.23′ N. lat., 125°42.80′ W. long.;
(10) 48°08.79′ N. lat., 125°43.79′ W. long.;
(11) 48°08.50′ N. lat., 125°45.00′ W. long.;
(12) 48°07.43′ N. lat., 125°46.36′ W. long.;
(13) 48°06.00′ N. lat., 125°46.50′ W. long.;
(14) 48°05.38′ N. lat., 125°42.82′ W. long.;
(15) 48°04.19′ N. lat., 125°40.40′ W. long.;
(16) 48°03.50′ N. lat., 125°37.00′ W. long.;
(17) 48°01.50′ N. lat., 125°40.00′ W. long.;
(18) 47°57.00′ N. lat., 125°37.00′ W. long.;
(19) 47°55.21′ N. lat., 125°37.22′ W. long.;
(20) 47°54.02′ N. lat., 125°36.57′ W. long.;
(21) 47°53.67′ N. lat., 125°35.06′ W. long.;
(22) 47°54.14′ N. lat., 125°32.35′ W. long.;
(23) 47°55.50′ N. lat., 125°28.56′ W. long.;
(24) 47°57.03′ N. lat., 125°26.52′ W. long.;
(25) 47°57.98′ N. lat., 125°25.08′ W. long.;
(26) 48°00.54′ N. lat., 125°24.38′ W. long.;
(27) 48°01.45′ N. lat., 125°23.70′ W. long.;
(28) 48°01.97′ N. lat., 125°22.34′ W. long.;
(29) 48°03.68′ N. lat., 125°21.20′ W. long.;
(30) 48°01.96′ N. lat., 125°19.56′ W. long.;
(31) 48°00.98′ N. lat., 125°20.43′ W. long.;
(32) 48°00.00′ N. lat., 125°20.68′ W. long.;
(33) 47°58.00′ N. lat., 125°20.00′ W. long.;
(34) 47°57.65′ N. lat., 125°19.18′ W. long.;
(35) 47°58.00′ N. lat., 125°18.00′ W. long.;
(36) 47°56.59′ N. lat., 125°18.15′ W. long.;
(37) 47°51.30′ N. lat., 125°18.32′ W. long.;
(38) 47°49.88′ N. lat., 125°14.49′ W. long.;
(39) 47°49.00′ N. lat., 125°11.00′ W. long.;
(40) 47°47.99′ N. lat., 125°07.31′ W. long.;
(41) 47°46.47′ N. lat., 125°08.63′ W. long.;
(42) 47°46.00′ N. lat., 125°06.00′ W. long.;
(43) 47°44.50′ N. lat., 125°07.50′ W. long.;
(44) 47°43.39′ N. lat., 125°06.57′ W. long.;
(45) 47°42.37′ N. lat., 125°05.74′ W. long.;
(46) 47°40.61′ N. lat., 125°06.48′ W. long.;
(47) 47°37.43′ N. lat., 125°07.33′ W. long.;
(48) 47°33.68′ N. lat., 125°04.80′ W. long.;
(49) 47°30.00′ N. lat., 125°00.00′ W. long.;
(50) 47°28.00′ N. lat., 124°58.50′ W. long.;
(51) 47°28.88′ N. lat., 124°54.71′ W. long.;
(52) 47°27.70′ N. lat., 124°51.87′ W. long.;
(53) 47°24.84′ N. lat., 124°48.45′ W. long.;
(54) 47°21.76′ N. lat., 124°47.42′ W. long.;
(55) 47°18.84′ N. lat., 124°46.75′ W. long.;
(56) 47°19.82′ N. lat., 124°51.43′ W. long.;
(57) 47°18.13′ N. lat., 124°54.25′ W. long.;
(58) 47°13.50′ N. lat., 124°54.69′ W. long.;
(59) 47°15.00′ N. lat., 125°00.00′ W. long.;
(60) 47°08.00′ N. lat., 124°59.83′ W. long.;
(61) 47°05.79′ N. lat., 125°01.00′ W. long.;
(62) 47°03.34′ N. lat., 124°57.49′ W. long.;
(63) 47°01.00′ N. lat., 125°00.00′ W. long.;
(64) 46°55.00′ N. lat., 125°02.00′ W. long.;
(65) 46°51.00′ N. lat., 124°57.00′ W. long.;
(66) 46°47.00′ N. lat., 124°55.00′ W. long.;
(67) 46°34.00′ N. lat., 124°38.00′ W. long.;
(68) 46°30.50′ N. lat., 124°41.00′ W. long.;
(69) 46°33.00′ N. lat., 124°32.00′ W. long.;
(70) 46°29.00′ N. lat., 124°32.00′ W. long.;
(71) 46°20.00′ N. lat., 124°39.00′ W. long.;
(72) 46°18.16′ N. lat., 124°40.00′ W. long.;
(73) 46°15.83′ N. lat., 124°27.01′ W. long.;
(74) 46°15.00′ N. lat., 124°30.96′ W. long.;
(75) 46°13.17′ N. lat., 124°37.87′ W. long.;
(76) 46°13.17′ N. lat., 124°38.75′ W. long.;
(77) 46°10.50′ N. lat., 124°42.00′ W. long.;
(78) 46°6.21′ N. lat., 124°41.85′ W. long.;
(79) 46°3.02′ N. lat., 124°50.27′ W. long.;
(80) 45°57.00′ N. lat., 124°45.52′ W. long.;
(81) 45°46.85′ N. lat., 124°45.91′ W. long.;
(82) 45°45.81′ N. lat., 124°47.05′ W. long.;
(83) 45°44.87′ N. lat., 124°45.98′ W. long.;
(84) 45°43.44′ N. lat., 124°46.03′ W. long.;
(85) 45°35.82′ N. lat., 124°45.72′ W. long.;
(86) 45°35.70′ N. lat., 124°42.89′ W. long.;
(87) 45°24.45′ N. lat., 124°38.21′ W. long.;
(88) 45°11.68′ N. lat., 124°39.38′ W. long.;
(89) 44°57.94′ N. lat., 124°37.02′ W. long.;
(90) 44°44.28′ N. lat., 124°50.79′ W. long.;
(91) 44°32.63′ N. lat., 124°54.21′ W. long.;
(92) 44°23.20′ N. lat., 124°49.87′ W. long.;
(93) 44°13.17′ N. lat., 124°58.81′ W. long.;
(94) 43°57.92′ N. lat., 124°58.29′ W. long.;
(95) 43°50.12′ N. lat., 124°53.36′ W. long.;
(96) 43°49.53′ N. lat., 124°43.96′ W. long.;
(97) 43°42.76′ N. lat., 124°41.40′ W. long.;
(98) 43°24.00′ N. lat., 124°42.61′ W. long.;
(99) 43°19.74′ N. lat., 124°45.12′ W. long.;
(100) 43°19.62′ N. lat., 124°52.95′ W. long.;
(101) 43°17.41′ N. lat., 124°53.02′ W. long.;
(102) 42°49.15′ N. lat., 124°54.93′ W. long.;
(103) 42°46.74′ N. lat., 124°53.39′ W. long.;
(104) 42°43.76′ N. lat., 124°51.64′ W. long.;
(105) 42°45.41′ N. lat., 124°49.35′ W. long.;
(106) 42°43.92′ N. lat., 124°45.92′ W. long.;
(107) 42°38.87′ N. lat., 124°43.38′ W. long.;
(108) 42°34.78′ N. lat., 124°46.56′ W. long.;
(109) 42°31.47′ N. lat., 124°46.89′ W. long.;
(110) 42°31.00′ N. lat., 124°44.28′ W. long.;
(111) 42°29.22′ N. lat., 124°46.93′ W. long.;
(112) 42°28.39′ N. lat., 124°49.94′ W. long.;
(113) 42°26.28′ N. lat., 124°47.60′ W. long.;
(114) 42°19.58′ N. lat., 124°43.21′ W. long.;
(115) 42°13.75′ N. lat., 124°40.06′ W. long.;
(116) 42°5.12′ N. lat., 124°39.06′ W. long.;
(117) 41°59.99′ N. lat., 124°37.72′ W. long.;
(118) 42°0.00′ N. lat., 124°37.76′ W. long.;
(119) 41°47.93′ N. lat., 124°31.79′ W. long.;
(120) 41°21.35′ N. lat., 124°30.35′ W. long.;
(121) 41°7.11′ N. lat., 124°25.25′ W. long.;
(122) 40°57.37′ N. lat., 124°30.25′ W. long.;
(123) 40°41.03′ N. lat., 124°33.21′ W. long.;
(124) 40°37.40′ N. lat., 124°38.96′ W. long.;
(125) 40°33.70′ N. lat., 124°42.50′ W. long.;
(126) 40°31.31′ N. lat., 124°41.59′ W. long.;
(127) 40°25.00′ N. lat., 124°36.65′ W. long.;
(128) 40°22.42′ N. lat., 124°32.19′ W. long.;
(129) 40°17.17′ N. lat., 124°32.21′ W. long.;
(130) 40°18.68′ N. lat., 124°50.44′ W. long.;
(131) 40°10.11′ N. lat., 124°28.25′ W. long.;
(132) 40°1.63′ N. lat., 124°17.25′ W. long.;
(133) 39°51.85′ N. lat., 124°10.33′ W. long.;
(134) 39°32.41′ N. lat., 124°0.01′ W. long.;
(135) 38°57.16′ N. lat., 124°1.89′ W. long.;
(136) 38°11.66′ N. lat., 123°30.87′ W. long.;
(137) 38°3.18′ N. lat., 123°33.45′ W. long.; and
(138) 38°00.00′ N. lat., 123°28.84′ W. long.
(v) The 250-fm (457-m) depth contour modified to allow fishing for petrale in winter months of January, February, November, and December and used north of 38° N. lat. as a western boundary for the trawl RCA is defined by straight lines connecting all of the following points in the order stated:
(1) 48°14.71′ N. lat., 125°41.95′ W. long.;
(2) 48°13.00′ N. lat., 125°39.00′ W. long.;
(3) 48°08.50′ N. lat., 125°45.00′ W. long.;
(4) 48°06.00′ N. lat., 125°46.50′ W. long.;
(5) 48°03.50′ N. lat., 125°37.00′ W. long.;
(6) 48°01.50′ N. lat., 125°40.00′ W. long.;
(7) 47°57.00′ N. lat., 125°37.00′ W. long.;
(8) 47°55.50′ N. lat., 125°28.50′ W. long.;
(9) 47°58.00′ N. lat., 125°25.00′ W. long.;
(10) 48°00.50′ N. lat., 125°24.50′ W. long.;
(11) 48°03.50′ N. lat., 125°21.00′ W. long.;
(12) 48°02.00′ N. lat., 125°19.50′ W. long.;
(13) 48°00.00′ N. lat., 125°21.00′ W. long.;
(14) 47°58.00′ N. lat., 125°20.00′ W. long.;
(15) 47°58.00′ N. lat., 125°18.00′ W. long.;
(16) 47°52.00′ N. lat., 125°16.50′ W. long.;
(17) 47°49.00′ N. lat., 125°11.00′ W. long.;
(18) 47°46.00′ N. lat., 125°06.00′ W. long.;
(19) 47°44.50′ N. lat., 125°07.50′ W. long.;
(20) 47°42.00′ N. lat., 125°06.00′ W. long.;
(21) 47°38.00′ N. lat., 125°07.00′ W. long.;
(22) 47°30.00′ N. lat., 125°00.00′ W. long.;
(23) 47°28.00′ N. lat., 124°58.50′ W. long.;
(24) 47°28.88′ N. lat., 124°54.71′ W. long.;
(25) 47°27.70′ N. lat., 124°51.87′ W. long.;
(26) 47°24.84′ N. lat., 124°48.45′ W. long.;
(27) 47°21.76′ N. lat., 124°47.42′ W. long.;
(28) 47°18.84′ N. lat., 124°46.75′ W. long.;
(29) 47°19.82′ N. lat., 124°51.43′ W. long.;
(30) 47°18.13′ N. lat., 124°54.25′ W. long.;
(31) 47°13.50′ N. lat., 124°54.69′ W. long.;
(32) 47°15.00′ N. lat., 125°00.00′ W. long.;
(33) 47°08.00′ N. lat., 124°59.82′ W. long.;
(34) 47°05.79′ N. lat., 125°01.00′ W. long.;
(35) 47°03.34′ N. lat., 124°57.49′ W. long.;
(36) 47°01.00′ N. lat., 125°00.00′ W. long.;
(37) 46°55.00′ N. lat., 125°02.00′ W. long.;
(38) 46°51.00′ N. lat., 124°57.00′ W. long.;
(39) 46°47.00′ N. lat., 124°55.00′ W. long.;
(40) 46°34.00′ N. lat., 124°38.00′ W. long.;
(41) 46°30.50′ N. lat., 124°41.00′ W. long.;
(42) 46°33.00′ N. lat., 124°32.00′ W. long.;
(43) 46°29.00′ N. lat., 124°32.00′ W. long.;
(44) 46°20.00′ N. lat., 124°39.00′ W. long.;
(45) 46°18.16′ N. lat., 124°40.00′ W. long.;
(46) 46°15.83′ N. lat., 124°27.01′ W. long.;
(47) 46°15.00′ N. lat., 124°30.96′ W. long.;
(48) 46°13.17′ N. lat., 124°38.76′ W. long.;
(49) 46°10.51′ N. lat., 124°41.99′ W. long.;
(50) 46°6.24′ N. lat., 124°41.81′ W. long.;
(51) 46°3.04′ N. lat., 124°50.26′ W. long.;
(52) 45°56.99′ N. lat., 124°45.45′ W. long.;
(53) 45°49.94′ N. lat., 124°45.75′ W. long.;
(54) 45°49.94′ N. lat., 124°42.33′ W. long.;
(55) 45°45.73′ N. lat., 124°42.18′ W. long.;
(56) 45°45.73′ N. lat., 124°43.82′ W. long.;
(57) 45°41.94′ N. lat., 124°43.61′ W. long.;
(58) 45°41.58′ N. lat., 124°39.86′ W. long.;
(59) 45°38.45′ N. lat., 124°39.94′ W. long.;
(60) 45°35.75′ N. lat., 124°42.91′ W. long.;
(61) 45°24.49′ N. lat., 124°38.20′ W. long.;
(62) 45°14.43′ N. lat., 124°39.05′ W. long.;
(63) 45°14.30′ N. lat., 124°34.19′ W. long.;
(64) 45°8.98′ N. lat., 124°34.26′ W. long.;
(65) 45°9.02′ N. lat., 124°38.81′ W. long.;
(66) 44°57.98′ N. lat., 124°36.98′ W. long.;
(67) 44°56.62′ N. lat., 124°38.32′ W. long.;
(68) 44°50.82′ N. lat., 124°35.52′ W. long.;
(69) 44°46.89′ N. lat., 124°38.32′ W. long.;
(70) 44°50.78′ N. lat., 124°44.24′ W. long.;
(71) 44°44.27′ N. lat., 124°50.78′ W. long.;
(72) 44°32.63′ N. lat., 124°54.24′ W. long.;
(73) 44°23.25′ N. lat., 124°49.78′ W. long.;
(74) 44°13.16′ N. lat., 124°58.81′ W. long.;
(75) 43°57.88′ N. lat., 124°58.25′ W. long.;
(76) 43°56.89′ N. lat., 124°57.33′ W. long.;
(77) 43°53.41′ N. lat., 124°51.95′ W. long.;
(78) 43°51.56′ N. lat., 124°47.38′ W. long.;
(79) 43°51.49′ N. lat., 124°37.77′ W. long.;
(80) 43°48.02′ N. lat., 124°43.31′ W. long.;
(81) 43°42.77′ N. lat., 124°41.39′ W. long.;
(82) 43°24.09′ N. lat., 124°42.57′ W. long.;
(83) 43°19.73′ N. lat., 124°45.09′ W. long.;
(84) 43°15.98′ N. lat., 124°47.76′ W. long.;
(85) 43°4.14′ N. lat., 124°52.55′ W. long.;
(86) 43°4.00′ N. lat., 124°53.88′ W. long.;
(87) 42°54.69′ N. lat., 124°54.54′ W. long.;
(88) 42°45.46′ N. lat., 124°49.37′ W. long.;
(89) 42°43.91′ N. lat., 124°45.90′ W. long.;
(90) 42°38.84′ N. lat., 124°43.36′ W. long.;
(91) 42°34.82′ N. lat., 124°46.56′ W. long.;
(92) 42°31.57′ N. lat., 124°46.86′ W. long.;
(93) 42°30.98′ N. lat., 124°44.27′ W. long.;
(94) 42°29.21′ N. lat., 124°46.93′ W. long.;
(95) 42°28.52′ N. lat., 124°49.40′ W. long.;
(96) 42°26.06′ N. lat., 124°46.61′ W. long.;
(97) 42°21.82′ N. lat., 124°43.76′ W. long.;
(98) 42°17.47′ N. lat., 124°38.89′ W. long.;
(99) 42°13.67′ N. lat., 124°37.51′ W. long.;
(100) 42°13.76′ N. lat., 124°40.03′ W. long.;
(101) 42°5.12′ N. lat., 124°39.06′ W. long.;
(102) 42°2.67′ N. lat., 124°38.41′ W. long.;
(103) 42°2.67′ N. lat., 124°35.95′ W. long.;
(104) 42°0.00′ N. lat., 124°35.88′ W. long.;
(105) 41°59.99′ N. lat., 124°35.92′ W. long.;
(106) 41°56.38′ N. lat., 124°34.96′ W. long.;
(107) 41°53.98′ N. lat., 124°32.50′ W. long.;
(108) 41°50.69′ N. lat., 124°30.46′ W. long.;
(109) 41°48.30′ N. lat., 124°29.91′ W. long.;
(110) 41°47.93′ N. lat., 124°31.79′ W. long.;
(111) 41°21.35′ N. lat., 124°30.35′ W. long.;
(112) 41°7.11′ N. lat., 124°25.25′ W. long.;
(113) 40°57.37′ N. lat., 124°30.25′ W. long.;
(114) 40°41.03′ N. lat., 124°33.21′ W. long.;
(115) 40°37.40′ N. lat., 124°38.96′ W. long.;
(116) 40°33.70′ N. lat., 124°42.50′ W. long.;
(117) 40°31.31′ N. lat., 124°41.59′ W. long.;
(118) 40°25.00′ N. lat., 124°36.65′ W. long.;
(119) 40°22.42′ N. lat., 124°32.19′ W. long.;
(120) 40°17.17′ N. lat., 124°32.21′ W. long.;
(121) 40°18.68′ N. lat., 124°50.44′ W. long.;
(122) 40°10.11′ N. lat., 124°28.25′ W. long.;
(123) 40°1.63′ N. lat., 124°17.25′ W. long.;
(124) 39°51.85′ N. lat., 124°10.33′ W. long.;
(125) 39°32.41′ N. lat., 124°0.01′ W. long.;
(126) 38°57.16′ N. lat., 124°1.89′ W. long.;
(127) 38°11.66′ N. lat., 123°30.87′ W. long.;
(128) 38°3.18′ N. lat., 123°33.45′ W. long.; and
(129) 38°00.00′ N. lat., 123°28.84′ W. long.
(vi) The 50-fm (91-m) depth contour used between 40°10′ N. lat. and 34°27′ N. lat. as an eastern boundary for the
(1) 40°10.01′ N. lat., 124°19.97′ W. long.;
(2) 40°9.20′ N. lat., 124°15.81′ W. long.;
(3) 40°7.51′ N. lat., 124°15.29′ W. long.;
(4) 40°5.22′ N. lat., 124°10.06′ W. long.;
(5) 40°6.51′ N. lat., 124°8.01′ W. long.;
(6) 40°0.72′ N. lat., 124°8.45′ W. long.;
(7) 39°56.60′ N. lat., 124°7.12′ W. long.;
(8) 39°52.58′ N. lat., 124°3.57′ W. long.;
(9) 39°50.65′ N. lat., 123°57.98′ W. long.;
(10) 39°40.16′ N. lat., 123°52.41′ W. long.;
(11) 39°30.12′ N. lat., 123°52.92′ W. long.;
(12) 39°24.53′ N. lat., 123°55.16′ W. long.;
(13) 39°11.58′ N. lat., 123°50.93′ W. long.;
(14) 38°55.13′ N. lat., 123°51.14′ W. long.;
(15) 38°28.58′ N. lat., 123°22.84′ W. long.;
(16) 38°14.58′ N. lat., 123°9.93′ W. long.;
(17) 38°1.86′ N. lat., 123°9.76′ W. long.;
(18) 37°53.66′ N. lat., 123°12.06′ W. long.;
(19) 37°48.01′ N. lat., 123°15.84′ W. long.;
(20) 37°36.77′ N. lat., 122°58.48′ W. long.;
(21) 37°1.02′ N. lat., 122°33.71′ W. long.;
(22) 37°2.28′ N. lat., 122°25.06′ W. long.;
(23) 36°48.20′ N. lat., 122°3.28′ W. long.;
(24) 36°51.46′ N. lat., 121°57.54′ W. long.;
(25) 36°44.14′ N. lat., 121°58.10′ W. long.;
(26) 36°36.76′ N. lat., 122°1.16′ W. long.;
(27) 36°15.62′ N. lat., 121°57.13′ W. long.;
(28) 36°10.60′ N. lat., 121°43.65′ W. long.;
(29) 35°40.38′ N. lat., 121°22.59′ W. long.;
(30) 35°24.35′ N. lat., 121°2.53′ W. long.;
(31) 35°2.66′ N. lat., 120°51.63′ W. long.;
(32) 34°39.52′ N. lat., 120°48.72′ W. long.;
(33) 34°31.26′ N. lat., 120°44.12′ W. long.; and
(34) 34°27.00′ N. lat., 120°31.25′ W. long.
(vii) The 60-fm (110-m) depth contour used between 40°10′ N. lat. and 34°27′ N. lat. as an eastern boundary for the trawl RCA in March through October is defined by straight lines connecting all of the following points in the order stated:
(1) 40°10.01′ N. lat., 124°19.97′ W. long.;
(2) 40°9.20′ N. lat., 124°15.81′ W. long.;
(3) 40°7.51′ N. lat., 124°15.29′ W. long.;
(4) 40°5.22′ N. lat., 124°10.06′ W. long.;
(5) 40°6.51′ N. lat., 124°8.01′ W. long.;
(6) 40°0.72′ N. lat., 124°8.45′ W. long.;
(7) 39°56.60′ N. lat., 124°7.12′ W. long.;
(8) 39°52.58′ N. lat., 124°3.57′ W. long.;
(9) 39°50.65′ N. lat., 123°57.98′ W. long.;
(10) 39°40.16′ N. lat., 123°52.41′ W. long.;
(11) 39°30.12′ N. lat., 123°52.92′ W. long.;
(12) 39°24.53′ N. lat., 123°55.16′ W. long.;
(13) 39°11.58′ N. lat., 123°50.93′ W. long.;
(14) 38°55.13′ N. lat., 123°51.14′ W. long.;
(15) 38°28.58′ N. lat., 123°22.84′ W. long.;
(16) 38°8.32′ N. lat., 123°14.60′ W. long.;
(17) 38°0.27′ N. lat., 123°15.29′ W. long.;
(18) 37°56.93′ N. lat., 123°21.61′ W. long.;
(19) 37°48.01′ N. lat., 123°15.84′ W. long.;
(20) 37°36.77′ N. lat., 122°58.48′ W. long.;
(21) 37°1.02′ N. lat., 122°33.71′ W. long.;
(22) 37°2.28′ N. lat., 122°25.06′ W. long.;
(23) 36°48.20′ N. lat., 122°3.28′ W. long.;
(24) 36°51.46′ N. lat., 121°57.54′ W. long.;
(25) 36°44.14′ N. lat., 121°58.10′ W. long.;
(26) 36°36.76′ N. lat., 122°1.16′ W. long.;
(27) 36°15.62′ N. lat., 121°57.13′ W. long.;
(28) 36°10.60′ N. lat., 121°43.65′ W. long.;
(29) 35°40.38′ N. lat., 121°22.59′ W. long.;
(30) 35°24.35′ N. lat., 121°2.53′ W. long.;
(31) 35°2.66′ N. lat., 120°51.63′ W. long.;
(32) 34°39.52′ N. lat., 120°48.72′ W. long.;
(33) 34°31.26′ N. lat., 120°44.12′ W. long.; and
(34) 34°27.00′ N. lat., 120°31.25′ W. long.
(viii) The 100-fm (183-m) depth contour used between 34°27′ N. lat. and the U.S. border with Mexico as an eastern boundary for the trawl RCA is defined by straight lines connecting all of the following points in the order stated:
(1) 34°27.00′ N. lat., 120°31.74′ W. long.;
(2) 34°21.90′ N. lat., 120°25.25′ W. long.;
(3) 34°24.86′ N. lat., 120°16.81′ W. long.;
(4) 34°22.80′ N. lat., 119°57.06′ W. long.;
(5) 34°18.59′ N. lat., 119°44.84′ W. long.;
(6) 34°15.04′ N. lat., 119°40.34′ W. long.;
(7) 34°14.40′ N. lat., 119°45.39′ W. long.;
(8) 34°12.32′ N. lat., 119°42.41′ W. long.;
(9) 34°9.71′ N. lat., 119°28.85′ W. long.;
(10) 34°4.70′ N. lat., 119°15.38′ W. long.;
(11) 34°3.33′ N. lat., 119°12.93′ W. long.;
(12) 34°2.72′ N. lat., 119°7.01′ W. long.;
(13) 34°3.90′ N. lat., 119°4.64′ W. long.;
(14) 34°1.80′ N. lat., 119°3.23′ W. long.;
(15) 33°59.32′ N. lat., 119°3.50′ W. long.;
(16) 33°59.00′ N. lat., 118°59.55′ W. long.;
(17) 33°59.51′ N. lat., 118°57.25′ W. long.;
(18) 33°58.82′ N. lat., 118°52.47′ W. long.;
(19) 33°58.54′ N. lat., 118°41.86′ W. long.;
(20) 33°55.07′ N. lat., 118°34.25′ W. long.;
(21) 33°54.28′ N. lat., 118°38.68′ W. long.;
(22) 33°51.00′ N. lat., 118°36.66′ W. long.;
(23) 33°39.77′ N. lat., 118°18.41′ W. long.;
(24) 33°35.50′ N. lat., 118°16.85′ W. long.;
(25) 33°32.68′ N. lat., 118°9.82′ W. long.;
(26) 33°34.09′ N. lat., 117°54.06′ W. long.;
(27) 33°31.60′ N. lat., 117°49.28′ W. long.;
(28) 33°16.07′ N. lat., 117°34.74′ W. long.;
(29) 33°7.06′ N. lat., 117°22.71′ W. long.;
(30) 32°53.34′ N. lat., 117°19.13′ W. long.;
(31) 32°46.39′ N. lat., 117°23.45′ W. long.;
(32) 32°42.79′ N. lat., 117°21.16′ W. long.; and
(33) 32°34.22′ N. lat., 117°21.20′ W. long.
(ix) The 150-fm (274-m) depth contour used between 38° N. lat. and the U.S. border with Mexico as a western boundary for both the trawl RCA and the non-trawl RCA is defined by straight lines connecting all of the following points in the order stated:
(1) 37°59.73′ N. lat., 123°29.85′ W. long.;
(2) 37°51.46′ N. lat., 123°25.16′ W. long.;
(3) 37°44.06′ N. lat., 123°11.44′ W. long.;
(4) 37°35.26′ N. lat., 123°2.29′ W. long.;
(5) 37°14.00′ N. lat., 122°50.00′ W. long.;
(6) 37°1.00′ N. lat., 122°36.00′ W. long.;
(7) 36°58.07′ N. lat., 122°28.35′ W. long.;
(8) 37°0.71′ N. lat., 122°24.53′ W. long.;
(9) 36°57.50′ N. lat., 122°24.98′ W. long.;
(10) 36°58.38′ N. lat., 122°21.85′ W. long.;
(11) 36°55.85′ N. lat., 122°21.95′ W. long.;
(12) 36°52.86′ N. lat., 122°12.89′ W. long.;
(13) 36°48.71′ N. lat., 122°9.28′ W. long.;
(14) 36°46.65′ N. lat., 122°4.10′ W. long.;
(15) 36°51.00′ N. lat., 121°58.00′ W. long.;
(16) 36°44.00′ N. lat., 121°59.00′ W. long.;
(17) 36°38.00′ N. lat., 122°2.00′ W. long.;
(18) 36°26.00′ N. lat., 121°59.05′ W. long.;
(19) 36°22.00′ N. lat., 122°1.00′ W. long.;
(20) 36°19.00′ N. lat., 122°5.00′ W. long.;
(21) 36°14.00′ N. lat., 121°58.00′ W. long.;
(22) 36°10.61′ N. lat., 121°44.51′ W. long.;
(23) 35°50.53′ N. lat., 121°29.93′ W. long.;
(24) 35°46.00′ N. lat., 121°28.00′ W. long.;
(25) 35°38.94′ N. lat., 121°23.16′ W. long.;
(26) 35°26.00′ N. lat., 121°8.00′ W. long.;
(27) 35°7.42′ N. lat., 120°57.08′ W. long.;
(28) 34°42.00′ N. lat., 120°54.00′ W. long.;
(29) 34°29.00′ N. lat., 120°44.00′ W. long.;
(30) 34°22.00′ N. lat., 120°32.00′ W. long.;
(31) 34°21.00′ N. lat., 120°21.00′ W. long.;
(32) 34°24.00′ N. lat., 120°15.00′ W. long.;
(33) 34°22.11′ N. lat., 119°56.63′ W. long.;
(34) 34°19.00′ N. lat., 119°48.00′ W. long.;
(35) 34°15.00′ N. lat., 119°48.00′ W. long.;
(36) 34°8.00′ N. lat., 119°37.00′ W. long.;
(37) 34°7.00′ N. lat., 120°11.00′ W. long.;
(38) 34°13.00′ N. lat., 120°30.00′ W. long.;
(39) 34°9.00′ N. lat., 120°38.00′ W. long.;
(40) 33°58.00′ N. lat., 120°29.00′ W. long.;
(41) 33°51.00′ N. lat., 120°9.00′ W. long.;
(42) 33°38.00′ N. lat., 119°58.00′ W. long.;
(43) 33°38.00′ N. lat., 119°50.00′ W. long.;
(44) 33°46.25′ N. lat., 119°49.32′ W. long.;
(45) 33°53.82′ N. lat., 119°53.42′ W. long.;
(46) 33°59.00′ N. lat., 119°21.00′ W. long.;
(47) 34°2.00′ N. lat., 119°13.00′ W. long.;
(48) 34°1.52′ N. lat., 119°4.50′ W. long.;
(49) 33°58.83′ N. lat., 119°3.76′ W. long.;
(50) 33°56.55′ N. lat., 118°40.50′ W. long.;
(51) 33°51.00′ N. lat., 118°38.00′ W. long.;
(52) 33°39.63′ N. lat., 118°18.75′ W. long.;
(53) 33°35.44′ N. lat., 118°17.57′ W. long.;
(54) 33°31.98′ N. lat., 118°12.59′ W. long.;
(55) 33°33.25′ N. lat., 117°54.15′ W. long.;
(56) 33°31.43′ N. lat., 117°49.84′ W. long.;
(57) 33°16.53′ N. lat., 117°36.13′ W. long.;
(58) 33°6.51′ N. lat., 117°24.11′ W. long.;
(59) 32°54.11′ N. lat., 117°21.45′ W. long.;
(60) 32°46.15′ N. lat., 117°24.26′ W. long.;
(61) 32°41.97′ N. lat., 117°22.10′ W. long.;
(62) 32°39.00′ N. lat., 117°28.13′ W. long.; and
(63) 32°34.84′ N. lat., 117°24.62′ W. long.
(x) The 150-fm (274-m) depth contour used around islands/seamounts off the state of California is defined by straight lines around each island/seamount connecting all of the following points in the order stated:
(A) San Nicholas Island
(1) 33°32.73′ N. lat., 119°47.00′ W. long.;
(2) 33°14.00′ N. lat., 119°15.00′ W. long.;
(3) 33°12.00′ N. lat., 119°18.00′ W. long.;
(4) 33°11.00′ N. lat., 119°26.00′ W. long.;
(5) 33°13.13′ N. lat., 119°43.19′ W. long.;
(6) 33°13.11′ N. lat., 119°53.05′ W. long.;
(7) 33°30.00′ N. lat., 119°52.00′ W. long.; and
(8) 33°32.73′ N. lat., 119°47.00′ W. long.
(B) Santa Catalina Island
(1) 33°19.00′ N. lat., 118°15.00′ W. long.;
(2) 33°26.00′ N. lat., 118°22.00′ W. long.;
(3) 33°28.00′ N. lat., 118°28.00′ W. long.;
(4) 33°30.00′ N. lat., 118°31.00′ W. long.;
(5) 33°31.00′ N. lat., 118°37.00′ W. long.;
(6) 33°29.00′ N. lat., 118°41.00′ W. long.;
(7) 33°23.00′ N. lat., 118°31.00′ W. long.;
(8) 33°21.00′ N. lat., 118°33.00′ W. long.;
(9) 33°18.00′ N. lat., 118°28.00′ W. long.;
(10) 33°16.00′ N. lat., 118°13.00′ W. long.; and
(11) 33°19.00′ N. lat., 118°15.00′ W. long.
(C) San Clemente Island
(1) 32°48.50′ N. lat., 118°18.34′ W. long.;
(2) 32°56.00′ N. lat., 118°29.00′ W. long.;
(3) 33°3.00′ N. lat., 118°34.00′ W. long.;
(4) 33°5.00′ N. lat., 118°38.00′ W. long.;
(5) 33°3.00′ N. lat., 118°40.00′ W. long.;
(6) 32°48.00′ N. lat., 118°31.00′ W. long.;
(7) 32°43.00′ N. lat., 118°24.00′ W. long.; and
(8) 32°48.50′ N. lat., 118°18.34′ W. long.
(D) Santa Barbara Island
(1) 33°36.06′ N. lat., 118°57.15′ W. long.;
(2) 33°20.64′ N. lat., 118°59.39′ W. long.;
(3) 33°23.00′ N. lat., 119°7.00′ W. long.;
(4) 33°43.00′ N. lat., 119°14.00′ W. long.;
(5) 33°46.00′ N. lat., 119°12.00′ W. long.; and
(6) 33°36.06′ N. lat., 118°57.15′ W. long.
(E) Orange County Seamount
(1) 33°25.00′ N. lat., 118°1.00′ W. long.;
(2) 33°25.00′ N. lat., 117°58.00′ W. long.;
(3) 33°23.00′ N. lat., 117°58.00′ W. long.;
(4) 33°23.00′ N. lat., 118°1.00′ W. long.; and
(5) 33°25.00′ N. lat., 118°1.00′ W. long.
(20)
(a) Nearshore rockfish consists entirely of the minor nearshore rockfish species listed in Table 2, which includes California scorpionfish.
(i) Shallow nearshore rockfish consists of black-and-yellow rockfish, China rockfish, gopher rockfish, grass rockfish, and kelp rockfish.
(ii) Deeper nearshore rockfish consists of black rockfish, blue rockfish, brown rockfish, calico rockfish, copper rockfish, olive rockfish, quillback rockfish, and treefish.
(iii) California scorpionfish.
(b) Shelf rockfish consists of canary rockfish, shortbelly rockfish, widow rockfish, yelloweye rockfish, yellowtail rockfish, bocaccio, chilipepper, cowcod, and the minor shelf rockfish species listed in Table 2.
(c) Slope rockfish consists of POP, splitnose rockfish, darkblotched rockfish, and the minor slope rockfish species listed in Table 2.
(1)
Management measures may be changed during the year by announcement in the
(2)
(a)
(b)
(i)
(ii)
(iii)
(3)
(a) Allocations. The non-tribal allocations, based on percentages that are applied to the commercial OY of 121,200 mt in 2003 (see 50 CFR 660.323 (a)(4)), are as follows:
(i)
(ii)
(iii)
(iv)
(b)
(i)
(ii)
(iii)
(c)
(ii)
(4)
(1)
(2)
(a)
(b)
(i) It is not fishing under a valid limited entry permit issued under 50 CFR 660.333 for trawl gear;
(ii) All fishing on the trip takes place south of Pt. Arena, CA, and;
(iii) The landing includes California halibut of a size required by California Fish and Game Code section 8392(a), which states: “No California halibut may be taken, possessed or sold which measures less than 22 in (56 cm) in total length, unless it weighs 4 lbs (1.8144 kg) or more in the round, 3 and one-half lbs (1.587 kg) or more dressed with the head on, or 3 lbs (1.3608 kg) or more dressed with the head off. Total length means “the shortest distance between the tip of the jaw or snout, whichever extends farthest while the mouth is closed, and the tip of the longest lobe of the tail, measured while the halibut is lying flat in natural repose, without resort to any force other than the swinging or fanning of the tail.”
(c)
(i) It is not fishing under a valid limited entry permit issued under 50 CFR 660.333 for trawl gear;
(ii) All fishing on the trip takes place south of Pt. Arena, CA, and;
(iii) The landing includes sea cucumbers taken in accordance with California Fish and Game Code, section 8405, which requires a permit issued by the State of California.
(3)
Federal recreational groundfish regulations are not intended to supersede any more restrictive state recreational groundfish regulations relating to federally managed groundfish.
(1)
(a)
(b)
(c)
(2)
(3)
(a)
(i)
(A)
(B)
(C)
(D)
(ii)
(A)
(B)
(C)
(D)
(b)
(i)
(A)
(B) South of 40°10′ N. lat., recreational fishing for all groundfish, including lingcod, is prohibited seaward of the 20-fm (37-m) depth contour, except that recreational fishing for sanddabs is permitted seaward of the 20-fm (37-m) depth contour subject to the provisions in paragraph D.(3)(iv).
(ii)
(A)
(B)
(C)
(D)
(iii)
(B)
(C)
(D)
(iv)
(B)
(C)
(D)
(iv)
The legal basis for and background information on groundfish allocations harvest by the four Washington Coastal Tribes (Makah, Quileute, Hoh, and Quinault) with treaty rights to groundfish is described in the proposed
The Assistant Administrator (AA) announces the following tribal allocations for 2003, including those that are the same as in 2002. Trip limits for certain species were recommended by the tribes and the Council and are specified here with the tribal allocations.
The tribal allocation is 631 mt, 10 percent of the total catch OY, less 3 percent estimated discard mortality.
(1) For the commercial harvest of black rockfish off Washington State, a harvest guideline of: 20,000 lb (9,072 kg) north of Cape Alava (48°09′30” N. lat.) and 10,000 lb (4,536 kg) between Destruction Island (47°40′00” N. lat.) and Leadbetter Point (46°38′10” N. lat.).
(2) Thornyheads are subject to a 300-lb (136-kg) trip limit.
(3) Canary rockfish are subject to a 300-lb (136-kg) trip limit.
(4) Yelloweye rockfish are subject to a 100-lb (45-kg) trip limit.
(5) Yellowtail rockfish taken in the tribal mid-water trawl fisheries are subject to a cumulative limit of 30,000 lb (13,608 kg) per two-month period. Landings of widow rockfish must not exceed 10 percent of the weight of yellowtail rockfish landed in any two-month period. These limits may be adjusted by an individual tribe inseason to minimize the incidental catch of canary rockfish and widow rockfish.
(6) Other rockfish, including minor nearshore, minor shelf, and minor slope rockfish groups are subject to a 300-lb (136-kg) trip limit per species or species group, or to the non-tribal limited entry trip limit for those species if those limits are less restrictive than 300-lb (136-kg) per trip.
(7) Rockfish taken during open competition tribal commercial fisheries for Pacific halibut will not be subject to trip limits.
Lingcod are subject to a 300-lb (136-kg) daily trip limit and a 900-lb (408-kg) weekly limit.
The tribal allocation is 25,000 mt.
These final management measures for January 1 through February 28, 2003 are issued under the authority of, and are in accordance with, the Magnuson-Stevens Act and 50 CFR parts 600 and 660 subpart G (the regulations implementing the FMP).
The AA finds good cause to waive the requirement to provide prior notice and opportunity for public comment on this action pursuant to 5 U.S.C. 553(b)(B), because providing prior notice and comment would be impracticable and contrary to the public interest.
The January-February management measures are intended to protect overfished and other depressed stocks while also allowing as much harvest of healthy stocks as possible. As explained above, delay in implementation of these regulatory measures could cause harm to some stocks and would require unnecessarily restrictive measures later in the year to make up for the late implementation. Because the 2002 measures are not strict enough, leaving these measures in place could cause harm to some stocks. Much of the data necessary for these specifications and management measures came from the 2002 fishing year and new stock assessments were not available until June. Because of the timing of the receipt, development, review, and analysis of the fishery information necessary for setting the initial specifications and management measures, it is impracticable and contrary to the public interest to publish these measures in the
For the reasons above, the AA also finds good cause under 5 U.S.C. 553(d) to waive the requirement to delay for 30 days the effective date of the rule.
Because there is no requirement to provide for prior notice and opportunity for public comment on this rule the analytical requirements of the Regulatory Flexibility Act do not apply. However, as described above, the January-February 2003 management measures are based on the overall analysis underlying the 2003 specifications and March-December 2003 management measures which are proposed in the Proposed Rules section of this issue of the
This action has been determined to be not significant for purposes of Executive Order 12866.
Pursuant to Executive Order 13175, this emergency rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the FMP. Under the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Council must be a representative of an Indian tribe with federally recognized fishing rights from the area of the Council′s jurisdiction. In addition, regulations implementing the FMP establish a procedure by which the tribes with treaty fishing rights in the area covered by the FMP request new allocation or regulations specific to the tribes, in writing, before the first of the two autumn groundfish meetings of the Council. The regulation at 50 CFR 660.324(d) further states “the Secretary will develop tribal allocations and regulations under this paragraph in consultation with the affected tribe(s) and, insofar as possible, with tribal consensus.” The tribal management measures in this final rule have been developed following these procedures. The tribal representative on the Council made a motion to adopt the tribal management measures, which was passed by the Council, and those management measures, which were developed and proposed by the tribes, are included in this emergency rule.
NMFS issued Biological Opinions (BOs) under the Endangered Species Act on August 10, 1990, November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, and December 15, 1999, pertaining to the effects of the groundfish fishery on chinook salmon (Puget Sound, Snake River spring/summer, Snake River fall, upper Columbia River spring, lower Columbia River, upper Willamette River, Sacramento River winter, Central Valley, California coastal), coho salmon (Central California coastal, southern Oregon/northern California coastal, Oregon coastal), chum salmon (Hood Canal, Columbia River), sockeye salmon (Snake River, Ozette Lake), and steelhead (upper, middle and lower Columbia River, Snake River Basin, upper Willamette River, central California coast, California Central Valley, south-central California, northern California, and southern California).
During the 2000 Pacific whiting season, the whiting fisheries exceeded the chinook bycatch amount specified in the Pacific whiting fishery′s
Because prior notice and opportunity for public comment are not required for this emergency rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
Administrative practice and procedure, American Samoa, Fisheries, Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, Reporting and recordkeeping requirements.
l. The authority citation for part 660 continues to read as follows:
16 U.S.C. 1801
(g)
(ii) The northern and northwestern boundary is a line connecting the following coordinates in the order listed, which is the provisional international boundary of the EEZ as shown on NOAA/NOS Charts #18480 and #18007:
(iii) The southern limit is 47 deg.30′ N. lat.
(2)
(ii) The southern limit is 43 deg.00′ N. lat.
(3)
(ii) The southern limit is 40 deg.30′ N. lat.
(4)
(ii) The southern limit is 36 deg.00′ N. lat.
(5)
(ii) The southern limit is the U.S.-Mexico International Boundary, which
(h) Commonly used geographic coordinates—
(1) Cape Falcon, OR--45°46′ N. lat.
(2) Cape Lookout, OR--45°20′15″ N. lat.
(3) Cape Blanco, OR--42°50′ N. lat.
(4) Cape Mendocino, CA--40°30′ N. lat.
(5) North/South management line--40°10′ N. lat.
(6) Point Arena, CA--38°57′30″ N. lat.
(7) Point Conception, CA--34°27' N. lat.
(i)
33°50′ N. lat., 119°30′ W. long.;
33°50′ N. lat., 118°50′ W. long.;
32°20′ N. lat., 118°50′ W. long.;
32°20′ N. lat., 119°37′ W. long.;
33°00′ N. lat., 119°37′ W. long.;
33°00′ N. lat., 119°53′ W. long.;
33°33′ N. lat., 119°53′ W. long.;
33°33′ N. lat., 119°30′ W. long.;
and connecting back to 33°50′ N. lat., 119°30′ W. long.
(2) The Eastern CCA is a smaller area west of San Diego that is bound by straight lines connecting all of the following points in the order listed:
32°42′ N. lat., 118°02′ W. long.;
32°42′ N. lat., 117°50′ W. long.;
32°36′42″ N. lat., 117°50′ W. long.;
32°30′ N. lat., 117°53′30″ W. long.;
32°30′ N. lat., 118°02′ W. long.;
and connecting back to 32°42′ N. lat., 118°02′ W. long.
(j)
(2) The inner boundary of the fishery management area is a line coterminous with the seaward boundaries of the States of Washington, Oregon, and California (the “3-mile limit”).
(3) The outer boundary of the fishery management area is a line drawn in such a manner that each point on it is 200 nm from the baseline from which the territorial sea is measured, or is a provisional or permanent international boundary between the United States and Canada or Mexico.
(b) * * *
(6)
(7)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS proposes a rule to implement the 2003 fishery specifications and management measures for groundfish taken in the U.S. exclusive economic zone (EEZ) and State waters off the coasts of Washington, Oregon, and California. The proposed rule includes the levels of the acceptable biological catch (ABC) and optimum yields (OYs). The commercial OYs (the total catch OYs reduced by tribal allocations and by amounts expected to be taken in recreational and compensation fisheries, which is when a portion of the OY for a groundfish species is used as whole or partial compensation for resource surveys that were conducted using private vessels) proposed in this rule would be allocated between the limited entry and open access fisheries and between different sectors of the limited entry fleet. Proposed management measures for 2003 are intended to prevent overfishing; rebuild overfished species; reduce and minimize the bycatch and discard of overfished and depleted stocks; provide equitable harvest opportunity for both recreational and commercial sectors; and, within the commercial fisheries, achieve harvest guidelines and limited entry and open access allocations to the extent practicable.
Comments must be received no later than 5 p.m., local time (l.t.,) on February 6, 2003.
Send comments to D. Robert Lohn, Administrator, Northwest Region (Regional Administrator), NMFS, 7600 Sand Point Way N.E., Bldg. 1, Seattle, WA 98115-0070, or fax to 206-526-6736; or Rodney McInnis, Acting Administrator, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213, or fax to 562-980-4047. Comments will not be accepted if submitted via e-mail or the internet. Information relevant to this proposed rule, which includes a draft environmental impact statement, is available for public review during business hours at the office of the Pacific Fishery Management Council (Council), at 7700 NE Ambassador Place, Portland, OR 97220, phone: 503-820-2280. Copies of additional reports referred to in this document may also be obtained from the Council.
Yvonne deReynier or Becky Renko (Northwest Region, NMFS), phone: 206-526-6140; fax: 206-526-6736 and; e-mail:
The proposed rule also is accessible via the Internet at the Office of the
The Pacific Coast Groundfish Fishery Management Plan (FMP) requires that fishery specifications for groundfish be annually evaluated, and revised as necessary, that OYs be specified for species or species groups in need of particular protection, and that management measures designed to achieve the OYs be published in the
Throughout 2002, the Council has been developing revisions to its specifications and management measures process, through proposed Amendment 17 to the FMP. Among other procedural changes, Amendment 17 would revise the NMFS publication process for the specifications and management measures. Historically, the Council has developed annual specifications and management measures in a public two-meeting process (formerly at its September and November meetings) followed by a NMFS final action published in the
Amendment 17 was recently adopted by the Council, but has not yet been submitted for NMFS for approval. NMFS must still comply with the Court's Order for a public notice and comment period on the 2003 specifications and management measures. The Council had its initial meeting regarding these measures in June, and finalized its 2003 specifications and management measures recommendations at its September 9-13, 2002, meeting in Portland, OR. The Council could not act earlier in the year because the new science upon which the specifications and management measures were based was not ready until June.
For 2003, the Council has recommended implementing depth-based management measures, with large closed areas intended to prevent vessels from operating in waters where overfished species are commonly found. NMFS and the Council felt that these management changes were significant enough to warrant analysis via an environmental impact statement (EIS). An EIS is a National Environmental Policy Act analysis document that requires a series of public review and comment periods at different document drafting stages. Given the complexity of the annual specifications and management measures and the need for EIS-related public review periods, NMFS did not have enough time to publish a proposed rule, receive public comments, and implement a final rule by January 1, 2003. NMFS is publishing this proposed rule for the entire 2003 specifications and management measures package to comply with the Court's Order to make such regulatory packages available for public comment prior to implementation. To ensure that adequately conservative management measures are in place by January 1, 2003, NMFS has also published an emergency rule in the Final Rules
Specifications and management measures proposed for 2003 are designed to rebuild overfished stocks through constraining direct and incidental mortality, and to achieve as much of the OYs as practicable for healthier groundfish stocks managed under the FMP.
Proposed fishery specifications include ABCs, the designation of OYs (which may be represented by harvest guidelines (HGs) or quotas for species that need individual management), and the allocation of commercial OYs between the open access and limited entry segments of the fishery. These specifications include fish caught in State ocean waters (0-3 nautical miles (nm) offshore) as well as fish caught in the EEZ (3-200 nm offshore).
Each fishing year, the Council evaluates the biological condition of the Pacific Coast groundfish fishery, develops estimates of the ABC for major groundfish stocks and identifies the harvest levels or OYs for the species or species groups that it proposes to manage.
The Magnuson-Stevens Act requires that the FMP prevent overfishing. Overfishing is defined in the National Standards Guidelines (50 CFR part 600, subpart D) as exceeding the fishing mortality rate (F) needed to produce maximum sustainable yield (MSY) on a continuing basis. When setting the 2003 ABCs, the Council maintained a policy of using a default harvest rate as a proxy for the fishing mortality rate that is expected to achieve the maximum sustainable yield (Fmsy). The OYs were then set at levels expected to prevent overfishing, equal to or less than the ABCs.
The ABC for a species or species group is generally derived by multiplying the harvest rate proxy by the biomass forecast to be available to the fishery. In 2003, the following default harvest rates proxies, based on the Council's Scientific and Statistical Committee (SSC) recommendations, were used: F40% for flatfish and F50% for rockfish (including thornyheads), and F45% for other groundfish such as sablefish, and lingcod. For whiting the Council chose a harvest rate proxy of F45% which was more conservative than the SSC's F40% recommendation. The FMP allows default harvest rate proxies to be modified as scientific data improves for a particular species.
A harvest or fishing mortality rate can mean very different things for different stocks, because the rate is dependent on the productivity of a particular species. For more resilient stocks, those with less of a decline in recruitment (a measure of the young fish that mature and enter the fishery) as the spawning stock declines, a higher fishing mortality rate may be used, such as F40%. A rate of F40% 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 harvest rate than F45% or F50%. Harvest rate policies must account for several complicating factors, including the relative fecundity of mature individuals over time and the optimal stock size for the highest level of productivity within that stock.
For some groundfish species, there may be little or no detailed biological data available on which to base ABCs, with only rudimentary assessments being prepared. For other species, ABC levels may be established only on the basis of historical landings. Precautionary measures continue to be taken when setting ABCs and OYs for species with no or only rudimentary assessments.
In 2000, the Council adopted a more precautionary ABC policy for stocks with less rigorous or rudimentary stock assessments. The policy had been to assume that fishing mortality was equal to natural mortality (F=M); the current policy is that fishing mortality is 75 percent of natural mortality (F=0.75M). Based on SSC recommendations, the Council reaffirmed this policy, but added another precautionary adjustment, requiring that OYs for these stocks be set at 75 percent of ABCs. For further information on this policy, see the preamble to the annual specifications and management measures published on January 11, 2001 (66 FR 2338).
The 2003 ABCs are based on the best scientific information available to the Council at its September 2002 meeting. The ABCs in Table 1 represent total fishing mortality (landed catch plus discards). Where the assessments included Canadian waters, the ABCs apply only to U.S. waters. Stock assessment information considered in determining the ABCs is Stock Assessment and Fishery Evaluation documents and reports and is available from the Council. These documents were made available to the public before the Council's September 2002 meeting. Additional information may be found in the EIS prepared by the Council for this action and in documents available at the June and September 2002 Council meetings. (see
In 1999, the Council adopted a “40-10 precautionary policy” for setting OYs. The 40-10 policy is intended to reduce the chance that species will become overfished. According to the Council's OY policy, if the stock biomass is larger than the biomass needed to produce MSY (Bmsy), the OY may be set equal to or less than the ABC. The Council uses 40 percent as a default proxy for Bmsy, also referred to as B40%. The Council's default OY harvest policy reduces the fishing mortality rate when a stock is at or below Bmsy. A stock with a current biomass between 25 percent of the unfished level and Bmsy is said to be in the “precautionary zone.” The further the stock is below the precautionary threshold (usually B40%), the greater the reduction in OY relative to the ABC, until at B10%, the OY would be set at zero. This is, in effect, a default rebuilding policy that will foster quicker return to the Bmsy level than would fishing at the ABC level. For further information on this policy, see the preamble to the annual specification and management measures published on January 8, 1999 (64 FR 1316).
The Council may recommend setting the OY higher than what the default OY harvest policy specifies, provided that the OY does not exceed the ABC (Fmsy)
The species that had ABCs and OYs in 2002 continue to have ABCs and OYs in 2003. Changes that have been made since 2002 that affect the ABCs and OYs for 2003 include: (1) the completion of new assessments for canary, bocaccio, and yelloweye rockfish; (2) the preparation of an assessment update for sablefish; (3) the preparation of a yelloweye rockfish rebuilding analysis; (4) revision of the widow rockfish rebuilding analysis; (5) changes in the catch distribution of canary rockfish between commercial and recreational fisheries; (6) the preparation of a sustainability analysis for bocaccio rockfish; (7) the projection of the 2002 Pacific whiting model forward one year; and (8) the subdivision of the minor nearshore rockfish south OY into shallow nearshore rockfish, California scorpion fish, and deeper nearshore rockfish. Discussions of the development of ABCs and OYs for species with changed specifications from 2002 are contained in this section. Summaries of draft rebuilding plans for overfished species are provided in the next section, “Determination of Overfished Stocks and Rebuilding Plans.”
NMFS prepared an assessment update for canary rockfish, based on an age-structure stock synthesis model. Unlike the previous assessment in 2000, the 2002 assessment model included the entire coast and blended the alternative mortality/selectivity scenarios into one scenario that linked increasing female natural mortality to maturity while allowing selectivity (the ability of the gear to catch certain sizes or types of fish) of females to be domed shaped. In this context, “domed shaped” means that the model places greater emphasis on female mortality at intermediate ages, rather than equally across all possible ages of mortality. This was done to address uncertainty regarding the reasons for the lower occurrence of old females versus old males. Although the model provides a more complete evaluation, the availability and mortality of older females in the survey and fishery data continues to be a source of uncertainty with the assessment. The 2002 assessment extends back to 1940 to provide a better evaluation of the unfished biomass level, and estimates the degree of compensation in the spawner-recruitment relationship to provide an improved basis for forecasting future recruitments during rebuilding.
The new assessment estimates that the canary rockfish biomass was at 8 percent of its unfished biomass coastwide at the beginning of 2002. As with the 2000 assessment, canary rockfish shows a decline throughout the assessment time period with most of the decline occurring from 1975 to 1995.
The Council considered four OYs based on different rebuilding parameters—constant fishing mortality rates that would have 80-percent, 60-percent and 50-percent probabilities of rebuilding the canary rockfish to Bmsy by the year 2076 (T
A new stock assessment was prepared for bocaccio rockfish in the Conception and Monterey areas, the statistical areas where the bocaccio rockfish stock is overfished. This new assessment uses a length-based stock synthesis model similar to that used for the 1999 assessment, but differs from the previous assessment in that it (1) includes new information from a larger area of southern California; (2) moves the beginning of the assessment time period back 18 years; (3) updates estimates of commercial and recreational landings data; (4) uses a “jacknife” statistical method to estimate precision of abundance indexes rather than using assumed values of precision, which is a useful procedure when the data dispersion or distribution are wide or extreme; (5) omits triennial survey data from hauls where the trawl gear did not actually fish on the ocean floor (so-called “water hauls”); (6) adds an index of larval abundance reflecting spawning biomass; (7) adds a recreational “catch per unit effort”(CPUE)index for 1980-2001; and (8) includes a new recruitment index based on the impingement rate of juvenile bocaccio rockfish in saltwater intakes at southern California electric power plants between 1972-2000.
The new bocaccio rockfish assessment is consistent with the finding in previous assessments that there has been a declining biomass trend since 1969. The new assessment estimates that the bocaccio rockfish spawning stock biomass in the Monterey and Conception areas is at about 3.6 percent of its unfished biomass. The estimated biomass for 2002 (age 2+ fish) is 2,914 mt. The ABC for bocaccio rockfish, which is based on the new assessment with an Fmsy proxy of F50%, is 198 mt.
Bocaccio was declared overfished in 1999. Since 2000, the bocaccio OY has been set to be a constant harvest level of 100 mt. This level was based on the 1999 rebuilding analysis and was estimated to have a 67 percent probability of rebuilding the stock to Bmsy by 2033. The new assessment in 2002 found that the rate of rebuilding would probably be lower than projected from the 1999 assessment and that the
In the revised bocaccio rebuilding analysis prepared following the June Council meeting, the stock failed to have a 50- percent probability of rebuilding by T
NMFS believes that the Magnuson-Stevens Act requires that the Council and NMFS meet the conservation needs of the stock (National Standard 1), and also consider the needs of fishing communities (National Standard 8). Balancing these considerations, zero fishing mortality is not required for this situation. Zero fishing mortality would seriously adversely affect fishers and communities in California south of Cape Mendocino, CA. In this area, commercial fisheries (including fisheries for non-groundfish species) and recreational fisheries that incidentally catch bocaccio would be severely curtailed or closed for many years into the future. Bocaccio is taken incidentally in a wide variety of fisheries, ranging from recreational fisheries that operate off piers and jetties taking juvenile bocaccio in nearshore waters, to commercial purse seine fisheries for squid and other coastal pelagic species.The OY recommended by the Council, which is based on the sustainability analysis, the needs of fishing communities, and the biology of the stock, has a low probability of driving the stock into further decline and will not materially jeopardize future rebuilding. The large historical biomass of bocaccio occurred through accumulation over time of biomass from several intermittent, large recruitments. These large recruitment events are thought to be connected to currently unknown and unpredictable ocean conditions. Bocaccio rebuilding depends on the future occurrence of similarly large recruitment successes. Although the 1999 year class was in fact smaller than had been projected in 1999, it is still the largest year class since 1991. The recruitment success observed in 1999 indicates that the current spawning biomass is capable of initiating the rebuilding, but substantial rebuilding awaits the future occurrence of several such successes. Based on the current information, NMFS concludes that at the proposed OY level bocaccio will be able to rebuild. The analysis shows an 80 percent probability of no further decline after 100 years, a 50 percent probability (the standard reference probability level) of rebuilding within 170 years, and a 33 percent probability of rebuilding by the year 2109. Therefore, NMFS believes the recommended OY is consistent with the Magnuson-Stevens Act.
Yelloweye rockfish were first assessed in 1996 as part of the “remaining rockfish” group. In 2001, a yelloweye rockfish assessment was conducted for northern California and Oregon. The 2001 assessment estimated that yelloweye rockfish was at about 7 percent of its unfished biomass in waters off northern California and at 13 percent of its unfished biomass in waters off Oregon; this resulted in NMFS declaring yelloweye rockfish to be overfished. An initial yelloweye rockfish rebuilding analysis, based on the 2001 assessment, was prepared and presented at the Council's June 2002 meeting. Because this assessment did not cover Washington, the development of rebuilding measures was hampered.
In August 2002, an updated assessment was completed in order to incorporate data from Washington, an important area of yelloweye rockfish abundance, and to incorporate newly available age data. Other changes from the 2001 assessment included: the use of a combined area model; revised selectivity curves for all sectors of the fishery; the inclusion of Washington catch data; re-evaluation of California logbook data and the influence of port group and depth effects; extension of the modeled time period; revision of the treatment of natural mortality rates; and inclusion of a spawner-recruitment relationship to provide an overall measure of stock productivity.
Like the 2001 assessment, the updated assessment indicated that there has been a declining abundance trend for more than 30 years, with the last above average recruitment occurring in the late 1980s. The assessment update concluded that the coastwide yelloweye rockfish spawning female biomass (934 mt) was at 24.1 percent of its unfished biomass at the beginning of 2002. The SSC supported the new assessment model and indicated that it represented the best available science. The 2003
A revised rebuilding analysis was prepared following completion of the 2002 assessment. Due to the less depleted stock status and higher productivity estimated by the updated assessment, the rebuilding period is shorter than had been estimated following the initial rebuilding analysis. The SSC indicated that the revised rebuilding analysis represented the best available science and advised using it to set 2003 harvest levels.
At the Council's September meeting, four OY options were considered for yelloweye rockfish: 2.1 mt — the low range from the June 2002 draft rebuilding analysis; 13.5 mt - the 2002 OY; 22 mt - based on a 50-percent probability of rebuilding the yelloweye rockfish to Bmsy by the year 2050 (T
In 2001, sablefish were assessed in the region between Point Conception (34° 27′ N. lat.) and the U.S.-Canada border. The assessment indicated a decline in biomass since the late 1970s and a decline in recruitment during the early 1990s. This result was supported by a parallel assessment conducted by an industry-supported research team. For 2002, newly available fishery and survey data were used to update the assessment. No changes were made to the model structure or assumptions. However, the update produced a larger than expected increase in the perceived stock abundance throughout the time series. Such a change is an indication of the overall uncertainty in the stock assessment due to the relatively short time series of survey data. The relative 2001 spawning stock biomass had been estimated to be between 27 and 38 percent of the unfished biomass following the 2001 assessment, and the estimate increased to between 31 and 39 percent of the unfished biomass in the 2002 update. There was a notable increase in the estimated abundance of young fish born in 1999 and 2000 and evidence that these young fish have begun to recruit to the fishery.
As in 2001, two alternative states of nature, environmentally driven and density-dependent, were considered in calculation of target abundance levels and current productivity. The declines in recruitment during the early 1990s may have resulted from changes in environmental conditions or the low recruitment may have been caused by low spawning biomass. It is not possible to determine with high confidence the primary cause of the low recruitments during the 1990s, but the higher recruitment in 1999 and 2000 lends support for the environmental scenario.
The ABC estimate for the assessment area north of Point Conception (34° 27′ N. lat) is 8,459 mt. The ABC for the management area north of 36° N lat. is 8,209 mt (97.04 percent of the ABC from the surveyed area). The ABC estimate was based on the environmental scenario for trends in recruitment and on application of an Fmsy proxy of F45%. Although there is evidence that juvenile sablefish have begun to recruit to the fishery, the growth of the sablefish biomass will be slow and will depend on future average recruitment being larger than observed during most of the 1990s.
Four OY options were presented to the Council for the area North of 36° N. lat.: 8,187 mt based on the ABC from the environmentally driven projection with an Fmsy proxy of F45% and a 40/10 adjustment; 7,455 mt based on the ABC from the density-dependent projection with an Fmsy proxy of F45% and a 40/10 adjustment; 4,477 mt based on the ABC from the density-dependent projection with an Fmsy proxy of F60% and a 40/10 adjustment; and 5,000 mt, an intermediate point between 4,477 mt and 7,455 mt. The SSC indicated that the medium and high OYs were relatively risk-prone and advised the Council that caution should be used when setting the 2003 harvest levels. The SSC noted that an OY of 5,000 mt, as recommended by the Council's ad hoc Allocation Committee, was consistent with the SSC recommendation and addresses uncertainty in assessment relating to the different states of nature.
Following discussions and public comment, the Council recommended adopting an ABC of 8,459 mt for the surveyed area, resulting in an ABC of 8,209 mt with an OY of 6,500 mt for the area north of 36° N′ lat. The Council recommended OY of 6,500 mt is the 7,455 mt OY, based on a 40/10 adjustment to the ABC, with an additional 1,000 mt precautionary reduction. The Council based its recommendation on the SSC's advice to be precautionary because of assessment uncertainties, and because the sablefish biomass is within the precautionary range. The Council indicated that it was prudent to adopt an OY that was risk averse rather than risk neutral.
Pacific whiting was declared overfished on April 15, 2002 (67 FR 18117). The Pacific whiting stock is estimated to be just below the FMP's overfished species rebuilding threshhold of B25%. In June, a draft rebuilding analysis for whiting that followed the analysis guidelines established by the SSC was presented to the Council. Because of the high variability in recruitment patterns and short life span of whiting, the rebuilding analysis estimated a short rebuilding period even with high harvest levels. However, given the recruitment variability, there is also a high probability that the whiting biomass would drop below the overfishing threshold again following recovery. The rebuilding analysis examined alternative Fmsy proxies in terms of whether the population would become overfished following recovery. The SSC was unable to investigate the merits of moving from the current F40% Fmsy proxy to another; however, the SSC did advise continuing the use of the 40-10 harvest policy for whiting and noted that the 40-10 harvest policy appeared adequate to achieve rebuilding.
Three OY options, all of which are based on a medium level of recruitment for the 1999 year class, were considered by the Council: 129,600 mt based on the 2002 biomass estimate with an F40% Fmsy proxy and the application of the 40-10 harvest policy; 148,200 mt based on the 2003 projected biomass with an F45% Fmsy proxy and the application of the 40-10 harvest policy; and 173,600 mt based on the 2003 projected biomass with an F40% Fmsy proxy and the application of the 40-10 harvest policy. The SSC advised the Council to be precautionary and not increase the whiting OY over the 2002 harvest level until a new assessment was conducted. However, the Council indicated that the medium harvest level, 148,200 mt, based on the 2003 projected biomass with an F45% Fmsy, was sufficiently precautionary. Although it allows a short-term increase in the OY based on expected population growth, it moves to a more precautionary harvest rate that is expected to increase the rebuilding rate and reduce the risk of declining back into an overfished state (below B25%) given the high productivity of whiting.
To protect depleted stocks and minimize the chance of overfishing, changes were made in 2000 that
Given the expected increase in fishing pressure in nearshore areas, the States of Oregon and California indicated that the commercial and recreational minor nearshore rockfish fisheries could be better managed if the minor nearshore rockfish species group were subdivided. For 2003, the States of Oregon and California will manage minor nearshore rockfish north as two groups: black and blue rockfish and all other nearshore rockfish. Due to the expected effort shift to the nearshore area resulting from depth based closures in deeper waters, the Council further recommended capping the 2003 OY at the 2000 OY level. This was done as a precautionary measure until quantitative assessment can be prepared for the southern portion (south of Cape Falcon, OR) of the area north of Cape Mendocino, CA. Because there are no commercial nearshore fisheries in the State of Washington, minor nearshore rockfish will continue to be managed as a single group. The total catch OY for black and blue rockfish in the area between 40°10′ N. lat. and 46°16′ N. lat. is 585 mt and the total catch OY for all other nearshore rockfish in this same area is 53 mt. For the area north of 46°16′ N. lat. (the Washington/Oregon border), the total catch OY for all nearshore rockfish is 290 mt, most of which is estimated to be taken in the recreational fisheries although a small amount is expected to be taken in the tribal fisheries.
For 2003, the minor nearshore rockfish south OY will be managed as the following three groups with separate OYs: Shallow nearshore rockfish (black and yellow, China, grass, gopher and kelp rockfish), California scorpionfish, and deeper nearshore rockfish (black, blue, brown, calico, copper, olive, treefish, and quillback rockfish). Given the projected increase in both recreational and commercial fishing pressure in nearshore areas, the State of California indicated that the fisheries could be better managed and overfishing prevented if the minor nearshore rockfish species were subdivided. The shallow nearshore rockfish total catch OY will be 104.9 mt; the deeper nearshore rockfish total catch OY will be 351 mt; and the California scorpionfish total catch OY will be 84.8 mt. Alternative catch sharing arrangements between the commercial and recreational sectors were considered by the Council. The catch sharing arrangement proposal in this rule was developed through a public hearing process conducted by the California Department of Fish and Game.
Nine groundfish stocks have been designated as “overfished,” POP, bocaccio, lingcod, canary rockfish, cowcod, darkblotched rockfish, widow rockfish, yelloweye rockfish and Pacific whiting. Management measures designed to rebuild overfished species, or to prevent species from becoming overfished, may restrict the harvest of relatively healthy stocks that are harvested with overfished species. As a result of the constraining management measures imposed to protect and rebuild overfished species, a number of the OYs for healthy stocks may not be achieved in 2003.
The recommended ABC for POP in 2003 is 689 mt, is based on an F50% Fmsy proxy and is a 2003 projection based on the Council's interim rebuilding strategy. Three OYs based on the most recent rebuilding analysis and corresponding to different probabilities of rebuilding the stock were presented to the Council. These OYs were: 496 mt based on a 50 percent probability of rebuilding POP rockfish to Bmsy by the year 2041 (T
The recommended ABC for lingcod in 2003 is 841 mt and is based on an F45% Fmsy proxy. Three OYs, based on the rebuilding analysis prepared in 2001 and corresponding to different probabilities of rebuilding the stock to Bmsy by T
The recommended ABC for darkblotched rockfish in 2003 is 205 mt and is based on an F50% Fmsy proxy. Five OYs, based on the 2001 rebuilding analysis and corresponding to different probabilities of rebuilding the stock to Bmsy, were presented to the Council. These OYs were: 100 mt, 130 mt based on the 2001 harvest level that was in place before the final rebuilding analysis was completed, 172 mt the value corresponding to a 80- percent probability of rebuilding darkblotched rockfish to Bmsy by the year 2047 (T
Because darkblotched rockfish are primarily harvested with trawl gear, managing to a lower OY would most constrain the trawl fishery and likely require most fishing to occur seaward of the 250 fm (457 m) depth contour, where darkblotched rockfish is primarily caught (for further information see the Emergency rule to establish depth-based management measures; September 13, 2002, 67 FR 57973). Measures to further restrict flatfish trawl fisheries shoreward of 100 fm (183 m) would also protect juvenile darkblotched rockfish. Small vessels would be most affected by a lower OY. The Council recommended an OY of 172 mt, which provides a reasonable balance between the length of time for rebuilding the stock and the adverse economic impacts to the limited entry trawl sector. This OY is associated with an 80- percent probability of rebuilding within T
The recommended ABC for widow rockfish in 2003 is 3,871 mt and is based on an F50% Fmsy proxy. At the Council's June 2002 meeting, a revised widow rockfish rebuilding analysis was reviewed. Three OYs based on the revised analysis and corresponding to different probabilities of rebuilding the stock by T
The status of the groundfish stocks is evaluated against the requirements of the Magnuson-Stevens Act, the National Standard Guidelines, and the FMP. A species is considered to be overfished if its current biomass is less than 25 percent of the unfished biomass. The Magnuson-Stevens Act requires that a rebuilding plan be prepared within 1 year after the Council is notified by NMFS that a particular species is overfished.
In the fall of 2000, NMFS had approved the first three rebuilding plans for lingcod, boccacio, and POP (65 FR 53646, September 5, 2000). Subsequently, requirements for developing overfished species rebuilding plans were addressed in Amendment 12 to the FMP, which were submitted for public review (65 FR 54475, September 8, 2000) and approved by NMFS on December 7, 2000. During NMFS's review of Amendment 12, the agency considered whether the three recently approved rebuilding plans met the requirements of Amendment 12 and concluded that the plans did not. The final rule to implement Amendment 12 describes NMFS's revocation of the lingcod, boccacio, and POP rebuilding plans (65 FR 82947, December 29, 2000). NMFS instructed the Council to re-submit rebuilding plans. The groundfish fishery has continued to operate under interim rebuilding measures for these species.
While NMFS and the Council were developing rebuilding plans that were consistent with the requirements of Amendment 12, NMFS notified the Council that canary rockfish and cowcod were overfished and that the Council must submit rebuilding plans for these species to NMFS by January 4, 2001 (65 FR 221, January 4, 2000). On January 11, 2001 (66 FR 2338), NMFS notified the Council that darkblotched and widow rockfish were overfished and that Council must submit rebuilding plans for these species to NMFS by January 11, 2002. Subsequently, on August 20, 2001, the Federal magistrate ruled in
The draft rebuilding plans initially endorsed by the Council are summarized as follows:
Areas: Vancouver and Columbia
Status of stock: 13 percent of its unfished biomass (1998)
T
Ttarget with a 50 percent probability of rebuilding: 2027
Probability of rebuilding to Bmsy by T
Fmsy proxy: F50%
ABC in 2003: 689 mt
OY in 2003: 377 mt
Management measures for 2003: POP primarily inhabit waters of the upper continental slope and are found along the edge of the shelf. POP are primarily taken in trawl gear. Therefore, new depth based management measures that prohibit bottom trawling in depths where darkblotched rockfish, a slope species, are commonly found will also benefit POP. Relatively small cumulative trip limits are intended to accommodate incidental bycatch without encouraging targeting. POP is not an important species for the recreational or nontrawl commercial fisheries.
Bocaccio
Areas: Monterey and Conception
Status of stock: 3.6 percent of its unfished biomass in 2002
T
T
Probability of rebuilding to Bmsy by T
Fmsy proxy: F50%
ABC in 2003: 198 mt
OY in 2003: ≤20 mt
Management measures for 2003: All directed bocaccio rockfish fishing opportunities will be eliminated for 2003. Boccacio rockfish retention will not be permitted in the commercial fisheries. The OY will be used to accommodate discards of bocaccio rockfish resulting from incidental catch taken in fisheries for co-occurring species (see bycatch rate discussion). Bocaccio rockfish are a shelf species commonly found in depths between 45-160 fm (82-293 m). New depth based management measures will prohibit groundfish-directed bottom trawl, limited entry fixed gear, and open access fishing opportunities in the depths where bocaccio are most commonly found. Closed areas will differ by gear type to tailor closures so that they best reflect where a particular gear type takes bocaccio. Chilipepper rockfish will be included in the minor
Areas: Coastwide
Status of stock: 15 percent of its unfished biomass in 2001
T
T
Probability of rebuilding to Bmsy by T
Fmsy proxy: F45%
ABC in 2003: 841 mt
OY in 2003: 651 mt
Management measures for 2003: In general, commercial non-trawl landings are prohibited during winter months to protect lingcod during their spawning and nesting seasons. Trip limits during the open season remain low. Because lingcod are predominately found on the shelf, gear and depth based management restrictions imposed to protect overfished shelf rockfish species will benefit lingcod. The recreational fisheries in each State maintained a 2 lingcod bag limit, however Washington State will close lingcod fishing for five months, from fall to early spring. California recreational fisheries will be closed from January to June. Commercial hook and line fisheries are similarly closed during the winter months to eliminate targeting during the winter spawning and nesting season.
Canary Rockfish
Areas: Coastwide
Status of stock: 8 percent of its unfished biomass in 2002
T
T
Probability of rebuilding to Bmsy by T
Fmsy proxy: F50%
ABC in 2003: 272 mt
OY in 2003: 44 mt
Management measures for 2003: The new depth based management measures that prohibit bottom trawling on much of the continental shelf and slope will limit opportunity to catch canary rockfish. In addition, small footrope trawl gear restrictions in waters shoreward of the closed areas are expected to keep the incidental catch of canary rockfish low. May to October restrictions for arrowtooth flounder are also expected to minimize incidental catch of canary rockfish. Retention of canary rockfish will be prohibited in the limited entry and open access fixed gear fisheries. The States will require the exempted pink shrimp trawl vessels to use finfish excluders to participate in the state-managed fisheries. The States of Washington and California will ban spot prawn trawls beginning in 2003, and instead require pot gear to be used for spot prawns. In the recreational fisheries canary rockfish retention will be limited to 1 fish in Washington and Oregon, and prohibited in California. In addition, the California recreational fisheries south of 40° 10′ N. lat. will be closed entirely from January through June and open only shoreward of 20 fm (37 m) for July through December.
Cowcod
Areas: Point Conception to the U.S.- Mexico boundary.
Status of stock: 4-11 percent of unfished biomass in 1999
T
T
Probability of rebuilding to Bmsy by T
Fmsy proxy: F50%
ABC in 2003: 24 mt
OY in 2003: 4.8 mt
Management measures for 2003: All directed cowcod fishing opportunities were eliminated beginning in 2001. Retention of cowcod is prohibited for all commercial and recreational fisheries. To protect cowcod from incidental harvest, the Council has recommended continuing to use two Cowcod Conservation Areas (CCAs) (the Eastern CCA and the Western CCA) in the Southern California Bight, delineated to encompass key cowcod habitat areas and known areas of high catches. Fishing for groundfish is prohibited within the CCAs, except that minor nearshore rockfish, cabezon, lingcod, scorpionfish, and greenling may be taken from waters where the bottom depth is less than 20 fathoms (37 m) when the season for those species is open. A transportation corridor is provided through the Western CCA to allow commercial vessels fishing for slope rockfish and other groundfish west of the Western CCA to transport that groundfish through the Western CCA.
Darkblotched rockfish
Areas: Coastwide
Status of stock: 22 percent of unfished biomass in 2000
T
T
Probability of rebuilding to Bmsy by T
Fmsy proxy: F50%
ABC in 2003: 205 mt
OY in 2003: 172 mt
Management measures for 2003: Adult darkblotched rockfish primarily inhabit waters of the upper continental slope and are primarily found along the edge of the shelf north of 38° N.′ lat. Darkblotched rockfish are primarily taken with trawl gear. The new depth based management measures that prohibit bottom trawling on much of the continental shelf and slope will limit opportunity to catch darkblotched rockfish. Measures to restrict flatfish trawl fisheries shoreward of 100 fm (183 m) will also protect juvenile darkblotched rockfish. May to October restrictions for arrowtooth flounder are also expected to minimize incidental catch of darkblotched rockfish.
Widow Rockfish
Areas: Coastwide
Status of stock: 24 percent of unfished biomass in 2000
T
T
Probability of rebuilding to Bmsy by T
Fmsy proxy: F50 percent
ABC in 2003: 3,871 mt
OY in 2003: 832 mt
Management measures in 2003: Commercial limits for widow rockfish are intended to accommodate incidental catch and remove incentives for direct fishing. In addition, the midwater trawl fisheries for yellowtail rockfish have been constrained with an incidental catch allowance during the primary season for Pacific whiting to reduce interception of widow rockfish. Bottom trawl opportunities for shelf rockfish continue to be extremely limited, which is expected to benefit widow rockfish.
Yelloweye Rockfish
Areas: coastwide
Status of stock: 24 percent of unfished biomass in 2002
T
T
Probability of rebuilding to Bmsy by T
Fmsy proxy: F50%
ABC in 2003: 52 mt
OY in 2003: 22 mt
Management measures in 2003: Yelloweye rockfish are more available to the fixed gear and recreational fisheries than to trawl gear. The retention of yelloweye rockfish in the commercial fixed gear fisheries will be prohibited. In addition, depth based closures on the continental shelf will prevent commercial interception of yelloweye rockfish. Off Washington State retention of yelloweye rockfish in recreational fisheries will be prohibited. A Yelloweye Rockfish Conservation Area
Overfishing
None of the 2003 ABCs are knowingly set higher than Fmsy or its proxy, none of the OYs are set higher than the corresponding ABCs, and the management measures in this proposed rule are designed to keep harvest levels within specified OYs. Overfishing is difficult to detect inseason for many groundfish, particularly for minor rockfish species, because most are not individually identified on landing. Species compositions, based on proportions encountered in samples of landings, are applied during the year. However, final results are not available until after the end of the year. Thus, this
In the past, several changes to groundfish management, and rockfish management in particular, were intended to ensure that groundfish species were not subject to overfishing harvest rates. These changes included separating the rockfish complex into species and assemblages (nearshore, shelf, and slope), closing fisheries inseason once the OY has been reached, structuring the season to reduce bycatch of overfished species, imposing gear restrictions, requiring sorting of rockfish to improve landings data, and restructuring the season and trip limits inseason. As information on the stocks improves, management measures continue to evolve. For 2003, management measures are more restrictive in order to protect overfished species, including reduced harvest levels, depth based management, closed areas and seasons. Area closures north of Cape Mendocino, CA, were primarily designed to protect canary rockfish, but are also expected to provide protection for other northern overfished species such as darkblotched rockfish, lingcod, POP, yelloweye rockfish, and widow rockfish. Area closures south of Cape Mendocino, CA were primarily designed to protect bocaccio rockfish, but are also expected to provide protection for other southern overfished species such as cowcod, lingcod, and darkblotched rockfish in its southern range.
Bycatch and Discard Accounting
The Magnuson-Stevens Act defines bycatch as “fish which are harvested in a fishery, which are not sold or kept for personal use, and include economic discards and regulatory discards.” By contrast, Pacific Coast groundfish fishery management and many other fishery management regimes commonly use the term bycatch to describe non-targeted species that are caught in common with (co-occur with) target species, some of which are landed and sold or otherwise used and some of which are discarded. The term “discard” is used to describe those fish harvested that are neither landed nor used. For the purposes of this proposed rule, the term “bycatch” is used to describe a species' co-occurrence with a target species, regardless of that first species' disposition.
West Coast groundfish species are rarely found in isolation. They normally form associations with other groundfish species that vary by geographic location, position in the water column, and season. Fisheries management recognizes this mix by setting management measures that discourage targeting of more abundant stocks in times when and areas where depleted stocks may co-occur with those healthy stocks. Fisheries management also recognizes this mix by structuring retention allowances for the harvestable amounts of depleted stocks so that fisheries have some limited opportunity to access more abundant fish stocks.
With the exception of the mid-water trawl fishery for Pacific whiting, most groundfish vessels sort their catch at sea and discard species that are either in excess of cumulative trip limits, unmarketable, in excess of annual allocations, or incidentally caught non-groundfish species. Landed or retained catch has been monitored by the three state-run fish ticket programs in Washington, Oregon, and California. Since August 2001, total catch (landed catch + discards) has been monitored through a Federal observer program. (For more information on the NMFS observer program and the observer coverage plan, see
Groundfish management measures include provisions to reduce trip limit-induced discards and to account for those discards when monitoring harvest levels OYs. Historically, NMFS and the Council have accounted for dead discards by estimating the amounts of certain species OYs that would be discarded dead, and then subtracting those amounts from the total catch OYs to get landed catch levels for those species. These discard rates have been expressed as a percent of total catch OY, so that a 16- percent discard rate for a species meant that 16 percent of that species' total catch OY would be deducted to derive that species' landed catch OY. Then, management measures were set to achieve the landed catch OY for that species. Using discard rates was intended to account for dead fish either as dead discard or in landed catch. For all species except lingcod, sablefish, and nearshore rockfish species, it is assumed that discarded fish are generally dead upon discard or die soon after being discarded. Rockfish, particularly deepwater species, are severely stressed by decompression and temperature shock; however, lingcod discard mortality studies show about a 50-percent discard survival rate. There is no exact measure of discard amounts in most fisheries. Assumed amounts are taken into account to determine the fishing mortality level and to prevent overall harvest from exceeding the OYs.
NMFS approach to bycatch management in the 2002 specifications and management measures was a radical departure from historic bycatch management practices. The primary emphasis of the bycatch modeling that NMFS used in the development of the 2002 management measures was the estimation of the total amounts of bycatch species that would be caught coincidentally with available target species. The new management approach structured the amount and timing of cumulative landings limits for target species so that the expected total catch of both target and bycatch species not
Discard rates for individual groundfish species or species groups are provided in the species-specific footnotes to Table 1 of this document. Although no longer the first line of defense, calculating landed catch OYs based on estimated discard rates is still a strong second line of defense. NMFS new modeling approach for 2002 provided insight into the expected level of discards that are associated with total amounts of catch. Results from the modeling were drawn upon to estimate landed catch OYs for overfished species taken incidentally in the commercial fishery. Landings were monitored so that inseason action could be taken to reduce fishing effort for one or more of the target species. During 2002, notable closures and restrictive regulations were implemented to prevent overharvest of overfished species.
The third line of defense is the revision of the procedures used for evaluating inseason progress of the fishery and for making management adjustments for the target species, and will also help ensure that annual OYs for overfished species are not exceeded. In previous years, when inseason monitoring had revealed that landings of a target species or complex were progressing at a rate that was too fast or too slow, adjustments were made to the cumulative landings limits based primarily on achieving the annual OY for the target species with little consideration of the bycatch implications of changing those limits. For 2002 inseason actions, the bycatch model was used to evaluate the bycatch consequences of any deviations from the projected target fishery landings, and of any changes in target species limits during the remainder of the year. Target species landings limits were not adjusted upwards when an adjustment meant that an associated bycatch species total catch OY would be exceeded, even if the annual OY for the target species would not be achieved.
For setting its 2003 specifications and management measures, the Council again relied on the 2002 bycatch analysis described earlier in this document, adjusted as described below. However, NMFS anticipates revising the co-occurrence rates in the bycatch analysis in early 2003, based on the agency's evaluation of how those rates compare with rates recorded in the first year of the Federal at-sea observer program (August 2001 through August 2002). These revised co-occurrence rates will be used to guide decisions on inseason actions in 2003, just as the original bycatch analysis guided those decisions in 2002.
As discussed in more detail following this section, the Council has introduced new closed areas for 2003, intended to prevent vessels from fishing in waters where overfished species commonly occur. The Council and its advisory bodies expected that introducing new depth based management measures would require adjusting the bycatch analysis to better recognize fishing patterns in the areas remaining open to fishing. Additionally, 2003 depth-related revisions to the bycatch analysis would have to account for expected effort shift by vessels that had historically operated in the formerly open areas.
To account for varying fishing patterns by depth, the Groundfish Management Team (GMT) estimated the percentage of effort shift from closed areas to the remaining open fishing areas, then estimated the percentage of target species OYs that would be taken in the nearshore and offshore open areas. Some deepwater species, such as sablefish, will likely only be taken offshore of the closed areas; similarly, vessels will be targeting nearshore species shoreward of the closed areas. Other species, such as Dover sole, are distributed more broadly and will likely be taken in both the nearshore and offshore open areas. Once the GMT had set formulas to account for effort shift and target species availability in open fishing areas, the GMT addressed expected bycatch rates within those open areas.
Using the bycatch rates approved by the Council for the 2002 groundfish fisheries, the GMT analyzed bycatch rates for the same combinations of targeted and overfished stocks by depth and by two-month fishing period in trawl logbooks. Because the bycatch rates from trawl logbooks for the total fishing area were lower than those chosen by the Council for 2002 management, the GMT assumed that depth-specific bycatch rates shown in the trawl logbooks were not adequately conservative. Thus, the GMT adjusted depth-specific trawl logbook bycatch rates by the ratio between the Council's 2001/2002 selected rates for all areas and the logbook rates for all areas. From these adjustments, the GMT set new depth- and fishing period-specific bycatch rates that were compatible with the more conservative all areas bycatch rates the Council set in 2002. The SSC evaluated the GMT's methodology for setting depth based bycatch rates for 2003 and noted that the methods chosen were reasonable, yet would benefit from the expected 2003 analysis of the bycatch model against data gathered in the at-sea observer program.
In designing trip limits, season closures, and other management measures, the GMT crafted trip limit scenarios for targeted and bycatch species taken in the open areas that were calculated to keep the total catch (landed + discard) of targeted species and overfished species below their respective OYs. The Council's ultimate trip limit, season, and area closure recommendations were shaped largely by the depth-adapted 2001/2002 bycatch and discard analysis and are proposed in section IV of this proposed rule.
Depth-based Management
Since 1998, groundfish management measures have been shaped by the need to rebuild overfished groundfish stocks. The over 80 species in the West Coast groundfish complex mix with each other to varying degrees throughout the year and in different portions of the water column. Some species, like Pacific whiting, are strongly aggregated, making them easier to target with relatively little bycatch of other species. Conversely, other species like canary rockfish may occur in species specific clusters, but are also found co-occurring with a wide variety of other groundfish species. Over the past several years, groundfish management measures have been more carefully crafted to recognize the tendencies of overfished species to co-occur with healthy stocks in certain times and areas.
With the 2002 specifications and management measures, the Council introduced a new bycatch analysis model, discussed earlier, that allowed managers to set trip limits so that more abundant stocks were more strongly targeted in times when they were less likely to co-occur with overfished stocks. The 2002 management measures primarily varied by time (two-month period) and by north-south management area (north of Cape Mendocino, between Cape Mendocino and Point Conception,
Depth-based management closures for the continental shelf were first introduced on September 13, 2002 (67 FR 57973), with an emergency rule that closed trawling in the months of September-December 2002 in waters north of 40°10′ N. lat. (approximately at Cape Mendocino) at depths where darkblotched rockfish commonly occurs. At its June 2002 meeting, the Council had found that the darkblotched rockfish estimated total catch was expected to exceed the OY before the end of 2002. In order to protect darkblotched rockfish from overharvest while still allowing fisheries access to underharvested healthy stocks, the Council asked NMFS to implement an emergency rule that would allow trawl gear only shoreward of 100 fm (184 m) and offshore of 250 fm (461 m). NMFS reviewed and implemented the Council's request, revising the restrictions to allow fishing shoreward of 100 fm (184 m) only in October-December and offshore of 250 fm (461 mt) in September-December, to prevent overharvest of canary rockfish and darkblotched rockfish in September.
The September-December 2002 closure was intended to specifically protect darkblotched rockfish, which are commonly caught by trawl gear in waters of 70-250 fm (128-457 m) depth. In designing 2003 management measures, the Council considered depth closures that would provide protection for several overfished species. Different closed areas are provided for different gear types, as not all gear types encounter each overfished species at the same rate or in similar areas. POP, for example, is almost exclusively caught in trawl fisheries, whereas yelloweye rockfish tends to be caught by hook-and-line gear.
For the limited entry bottom trawl fisheries north of 40°10′ N. lat., canary rockfish tends to be available in 20-200 fm (37-366 m) depths, with higher catches in more shallow areas during the summer. As mentioned earlier, darkblotched rockfish tends to be found in 70-250 fm (128-457 m). To provide protection for all of these stocks in 2003, the Council recommended a closed area for bottom trawl fisheries north of 40°10′ N. lat. of 100-250 fm (184-461 m) depths, with the inshore closed area boundary line moving to 75 fm (137 m) for the months of July-August. This closure is expected to protect canary and darkblotched rockfish in areas where they have historically been taken by trawl fisheries. In the months of January-February and November-December, the offshore closed area boundary would be revised to allow some bottom trawling in areas where petrale sole tends to aggregate. (See paragraph IV A. (19) for exact coordinates.) This closed area is also expected to protect other northern continental shelf and slope overfished species, such as lingcod, widow rockfish, POP, and yelloweye rockfish. Large footrope bottom trawling would be prohibited shoreward of the closed areas. Midwater trawling, as defined at 50 CFR 660.322(b)(6) would be permitted within the closed area for Pacific whiting, yellowtail and widow rockfish because these fishing strategies have historically encountered only small amounts of overfished species as bycatch. Trawling with open access exempted gear for species other than groundfish (spot prawn off Oregon and pink shrimp north of 40°10′ N. lat) would be permitted within the closed area. However, the States require groundfish excluder devices to be used in the pink shrimp fishery.
In the limited entry bottom trawl and open access exempted trawl fisheries south of 40°10′ N. lat., bocaccio tend to be found in 45-160 fm (82-293 m) depths and the greatest number of bocaccio tend to be taken between 40°10′ N. lat. and 34°27′ N. lat. (Point Conception.) Although darkblotched rockfish are considered a northern species, they are also found between 40°10′ N. lat. and 38° N. lat. To protect these overfished species, the Council recommended closing bottom trawling between 40°10′ N. lat. and 38° N. lat. in 60-250 fm (110-457 m) depths, except that the inshore closed area boundary would be at 50 fm (91 m) in January-February. Between 38° N. lat. and 34°27′ N. lat., bottom trawling would be closed in 60-150 fm (110-274 m) depths, except that the inshore closed area boundary would be at 50 fm (91 m) in January-February. South of 34°27′ N. lat., bottom trawling would be permitted along the mainland coast (not off California islands) inside of 100 fm (183 m). Around the California islands, bottom trawling would be prohibited shoreward of 150 fm (274 m). Midwater trawling, as defined at 50 CFR 660.322(b)(6), would be permitted within the closed areas only for widow rockfish and whiting. For all areas, large footrope bottom trawling would be prohibited shoreward of the closed areas. Small footrope trawls are less able to fish in the rocky habitat preferred by many of the overfished rockfish species. In addition to these depth closures, the CCAs will remain closed to fishing offshore of 20 fm (37 m).
North of Cape Mendocino, CA, limited entry fixed gear and open access hook-and-line fisheries have a greater effect on yelloweye rockfish and a lesser effect on darkblotched rockfish than trawl gear fisheries. Thus, depth restrictions for these fisheries were designed to prevent hook-and-line gear from operating in depths where yelloweye rockfish are commonly found, 100 fm (183 m) and shallower. The Council has recommended closing limited entry and open access hook-and-line fishing shoreward of the 100 fm (183 m) contour off the Washington coast, and between 27 fm (49 m) and 100 fm (183 m) off the Oregon coast and off California north of 40°10′ N. lat. The 27-fm (49-m) contour occurs entirely in State waters off the State of Washington and commercial fishing for groundfish is prohibited in State waters off Washington, making an inshore closed area boundary moot for that State. Fishing is permitted shoreward of the 27 fm (49 m) boundary off Oregon and northern California because this area tends to be inshore of the areas where overfished species occur.
South of 40°10′ N. lat., limited entry fixed gear and open access fisheries will be primarily constrained by management measures to protect bocaccio. Fishing will be prohibited between the 20-fm (37-m) and 150-fm (274-m) depth contours throughout the year. The Council recommended an exception to this prohibition for commercial vessels using hook-and-line gear with no more than 12 hooks per line and up to 1 lb (.45 kg) weight per line, using hooks no larger than “Number 2” hooks, which measure 11 mm (0.44 inches) point to shank. This type of gear is used by vessels fishing for Pacific sanddabs, an abundant species that does not usually co-occur with overfished species. Hook-and-line vessels will also be permitted to fish in waters of 20-60 fm (37-110 m) depths during July and August. In addition to these depth closures, the CCAs will remain closed to fishing offshore of 20 fm (37 m).
Anticipating inseason adjustments to depth-based management measures, designed to protect overfished species while allowing the harvest of healthy groundfish stocks, the states of Oregon and California supplied coordinates for two additional depth contours. A 50-fm (91-m) depth contour off the state of Oregon and/or a 150-fm (270-m) depth
Recreational fisheries off Washington, Oregon, and California north of 40°10′ N. lat. will be subject to fewer depth restrictions than the commercial fisheries, primarily because most recreational vessels tend to operate in the nearshore area inside State waters. Off Washington, recreational fishing for groundfish and halibut will be prohibited inside the YRCA, a C-shaped closed area off the northern Washington coast. Coordinates for the YRCA will be defined at 50 CFR 660.304(d). Off Oregon and California north of 40°10′ N. lat., recreational fishing for groundfish will be closed outside of 27 fm (49 m) if either the yelloweye or canary rockfish recreational fisheries set asides are projected to be achieved.
As in past years, recreational fisheries off California south of 40°10′ N. lat., will be constrained by depth in order to reduce catch of bocaccio and other overfished rockfish species. Recreational fishing for groundfish will be prohibited entirely in waters offshore of the 20 fm (37 m) depth contour. The CCAs will also remain closed to fishing offshore of 20 fm (37 m). Coordinates defining the CCAs have changed modestly to ensure that the CCAs comply with depth-based closures for waters off southern California. CCA coordinates will be defined at 50 CFR 660.304(c).
Many of the closed areas and boundary lines are generally described using a fathom contour line. All of these lines, except the 20 fm (37 m) contour off California south of 40°10′ N. lat. and the 3-nautical mile State management line off California, are specifically defined in the regulations at IV.A. (19), using latitude/longitude waypoints. These waypoint coordinates provide straight-line boundaries that approximate the depth-contours to provide clarity to the closed area boundaries for enforcement purposes. To ensure that consistent nomenclature is used coastwide, an area closed to fishing for groundfish will be referred to as a “Groundfish Conservation Area” in general, regardless of whether the boundaries of that area change during the year. The YRCA and the CCA are defined by coordinates that are fixed throughout the year. The larger, gear or sector-specific closed areas described by depth contour boundaries for the 2003 fishing year will be referred to as “Rockfish Conservation Areas,” or RCAs. For example, there will be both a trawl RCA and a non-trawl RCA north of 40°10′ N. lat. Boundaries for the RCAs will be referred to as either the “inshore boundary,” meaning the RCA boundary or borderline that is closest to shore, or the “offshore boundary,” meaning the RCA boundary or borderline that is farthest offshore.
At its September meeting, the Council adopted the State of California's recommendation to create a California Rockfish Conservation Area (CRCA) in waters south of 40°10′ N. lat. To ensure consistent coastwide nomenclature, this area will be referred to as an RCA in Federal regulations. NMFS anticipates that the Council and the State of California may continue to refer to the CRCA in management discussions. This RCA south of 40°10′ N. lat. will be an area of restricted or no fishing intended to protect overfished rockfish species. This restricted area is proposed as ocean waters of 20-250 fm (37-457 m) depth between 40°10′ N. lat. and 38° N. lat and waters of 20-150 fm (37-274 m) depth between 38° N. lat. and the U.S. border with Mexico. The restrictions for that area that apply to the groundfish fisheries and the exceptions to those restrictions are described earlier in the section on depth based management. Any vessel allowed to fish within the CRCA based on an exception to a fishing restriction would be required to accommodate a State or Federal observer, if requested. In creating this RCA, the Council and the State of California wished to ensure that they had accounted for all fisheries that operate in waters where overfished rockfish species occur, whether State or federally managed. Several of the restrictions within the RCA affect only State-managed species and will be implemented through State regulations. Other restrictions affect federally-managed species other than groundfish, such as salmon, and will be implemented through Federal salmon regulations.
Vessel Monitoring System (VMS)
Routine monitoring of the fishing fleet is used to ensure that vessel operators comply with fisheries regulations. Traditional monitoring techniques include the monitoring of fisheries from air and surface craft, observer programs and analysis of catch records and vessel logbooks. The efficiency of these surveillance techniques can be dramatically enhanced by the addition of a VMS. VMS is a tool that is commonly used to monitor vessel activity in relationship to geographically defined management areas where fishing activity is restricted. VMS transmitters installed aboard each vessel automatically determine the vessel's location and transmit that position to a processing center via a communication satellite where the information is validated and analyzed before being disseminated for fisheries management, surveillance and enforcement purposes. Transmitters are designed to be tamper resistant and automatic.
Time area closures have long been used to restrict fishing activity in the Pacific Coast groundfish fishery in order to keep harvests within sector allocations and at sustainable levels or to prohibit the catch of certain species. Until September 2002, geographically defined areas tended to be in the nearshore area or defined by simple latitude lines. On September 13, 2002, NMFS published an emergency rule that established a Darkblotched Rockfish Conservation Area for the Pacific Coast groundfish fishery (67 FR 57973), a large irregularly shaped geographical area defined by a series of latitudinal and longitudinal coordinates that extends far offshore with much activity being beyond the range of State enforcement capabilities. Coastwide, depth-based areas defined for 2003 are similarly defined. Traditional enforcement of time areas closures is most effective when the geographical areas are nearshore, small, and defined by simple line. Therefore, management and enforcement of the large irregularly shaped areas proposed for the Pacific Coast groundfish fishery would be greatly enhanced if a VMS program were established. The Council recommended that NMFS move forward in developing a VMS program with the intention of having a system in place by mid-year 2003.
For October-December 2002, Washington and Oregon were able to monitor mid-water fisheries for yellowtail and widow rockfish in the DBCA through a vessel declaration process. The declaration process required vessels intending to fish within the closed area with mid-water gear to declare their intentions to the States. The States were able to fund this process because each vessel was limited to two trips per 2-month period, which also limited the number of declarations the States would have to track. In 2003, the States will not be able to monitor fisheries occurring within the closed areas with a declaration process because they are unable to fund such a process. Federal regulations proposing implementation of a VMS system will address the possible need for a Federal declaration system in conjunction with VMS coverage.
Since 1994, the non-tribal commercial groundfish fishery has been divided into
Historically, groundfish species and/or species groups have not been allocated between the commercial and recreational fisheries. Fishery managers instead estimated the amount that would be taken in the recreational fisheries and set that amount aside before determining the allowable harvest for the non-tribal commercial sectors. For 2003, the Council has recommended adopting nearshore groundfish allocations between the recreational and commercial fisheries. These allocations were proposed by the States of Oregon and California for waters off their coasts north and south of 40°10′ N. lat. and are intended to maintain the ratio between recreational and commercial landings 2000. Most of the fish subject to the allocation will be taken in State waters, but State-Federal management of these nearshore species is coordinated through the Council. Commercial groundfish fishing is prohibited in Washington State waters.
Groundfish species or species group allocations and set asides for the tribal and non-tribal sectors, and between the different non-tribal commercial and recreational sectors, are detailed in Tables 1a and 1b. All OYs, allocations and set asides are expressed in terms of total catch. The limited entry/open access allocations for bocaccio, canary, darkblotched, yelloweye rockfish, and the nearshore rockfish species group would be suspended to allow the Council to better develop management measures that provide harvest opportunity for more abundant stocks while protecting overfished stocks. Estimates of trip-limit induced discards are taken “off the top” and in accordance with the bycatch and discard analysis described earlier in this notice before setting the non-tribal sector allocations, except for estimates of sablefish discards as explained in the footnotes to Table 1a. Landed catch equivalents are the harvest goals used when adjusting trip limits and other management measures during the season. Estimated bycatch of yellowtail, widow, canary, and darkblotched rockfish in the offshore whiting fishery is also deducted from the limited entry allocations before determining the landed catch equivalents for the target fisheries for widow and yellowtail rockfish.
The open access fishery is composed of vessels that operate under the OYs, quotas, and other management measures governing the open access fishery, using (1) exempt gear or (2) longline or pot (trap) gear fished from vessels that do not have limited entry permits endorsed for that gear. Exempt gear includes all types of legal groundfish fishing gear except groundfish trawl, longline, and pots. (Exempt gear includes trawls used to harvest pink shrimp, spot or ridgeback prawns (shrimp trawls) and halibut or sea cucumbers south of Pt. Arena, CA (38°57′30″ N. lat.)
Open access allocations are derived by applying the open access allocation percentages to the commercial OY. The commercial OY is the total catch OY after subtracting any tribal allocations and set-asides for recreational fisheries or compensation fishing for conducting resource surveys. For those species in which the open access share would have been less than 1 percent, no open access allocation is specified unless significant open access effort is expected.
The limited entry fishery is the fishery composed of vessels using limited entry gear fished pursuant to the OYs, quotas, and other management measures governing the limited entry fishery. Limited entry gear includes longline, pot, or groundfish trawl gear used under the authority of a valid limited entry permit issued under the FMP, affixed with an endorsement for that gear. Groundfish trawl gear excludes shrimp trawls used to harvest pink shrimp, spot or ridgeback prawns, and other trawls used to fish for California halibut or sea cucumbers south of Pt. Arena, CA. A sablefish endorsement is also required for a vessel to operate in the limited entry primary fixed gear season for sablefish.
The limited entry allocation (in total catch) is the OY reduced by (1) set-asides, if any, for treaty tribal fisheries, recreational fisheries, or compensation fishing for participation in resource surveys (which results in the commercial OY or quota); and (2) the open access allocation. (Allocations for Washington coastal tribal fisheries are discussed in Section V. and, for Pacific whiting, at paragraph IV.B.(3).)
Following these procedures, the Regional Administrator calculated the amounts of allocations that are presented in Table 1a of this document. Unless otherwise specified, the limited entry and open access allocations would be treated as OYs or harvest guidelines in 2003. There may be slight discrepancies from the Council's recommendations due to rounding.
Before 2000, the major goals of groundfish management were to prevent overfishing while achieving the OYs and to provide year-round fisheries for the major species or species groups. Over time, however, it became apparent that a number of species could not continue to be harvested year-round at a constant harvest rate. New legislative mandates under the Magnuson-Stevens Act (as amended by the Sustainable Fisheries Act in 1996) gave highest priority to preventing overfishing and rebuilding overfished stocks to their MSY levels. The National Standard Guidelines at 50 CFR 600.310 interpreted this as “weak stock management,” which means that harvest of more abundant stocks may need to be curtailed to prevent overfishing or to rebuild overfished stocks.
Nine FMP species were declared overfished as of March 2002 (lingcod, bocaccio, POP, canary rockfish, cowcod, widow rockfish, darkblotched rockfish, yelloweye rockfish and Pacific whiting). Of the management measures intended to protect these species, measures for canary and darkblotched rockfish protection in the north and bocaccio protection in the south are the most constraining, because both species are broadly distributed on the continental shelf. Canary rockfish management is constraining because canary rockfish are caught directly or incidentally in most West Coast fisheries (groundfish and non-groundfish.) In order to rebuild these overfished species while allowing harvest of more abundant stocks, the Council chose management measures that prohibit bottom trawling over large portions of the continental shelf, where lingcod, bocaccio, canary rockfish, cowcod, widow rockfish, yelloweye rockfish, and, to a lesser extent, POP and darkblotched rockfish occur. As discussed earlier in this notice, the depth based management measures introduced for 2003 are gear-specific and have been crafted to maximize fishing opportunity for more abundant stocks in times when and areas where bycatch and discard of overfished and depleted stocks is estimated to be lowest.
Management measures for the limited entry fishery are found in section IV. Most cumulative trip limits, size limits, and seasons for the limited entry fishery are set out in Tables 3 and 4 of section IV. However, the limited entry nontrawl sablefish fishery, the midwater trawl fishery for Pacific whiting, and the hook-and-line fishery for black rockfish off Washington are managed separately from the majority of the groundfish species and are not fully addressed in the tables. The management structure for these fisheries has not changed since 2002, except for the level of trip limits for sablefish and Pacific whiting, and is described in paragraphs IV.B.(2)-(4) of section IV. Other provisions for the 2002 fisheries not explicitly addressed above would remain in effect for 2003 and are repeated in section V. of this document.
After hearing proposals and advice from its advisory entities and public testimony at its September 2002 meeting, the Council recommended the following actions for management in 2003.
For the limited entry trawl fishery, the Council recommended a suite of gear restrictions, area closures and cumulative trip limits designed to allow fishing with gear in times and areas where incidental catch of overfished or depleted species will be minimized. In 2002, limits for some species groups were more varied than those proposed for 2003 because the 2002 limits were set to encourage (higher limits) or discourage (lower limits) fishing in different depths. Because the Council has recommended depth based closures for 2003, trip limits for those species taken in areas that remain open vary less than in 2002. Many of the more abundant groundfish stocks, such as the suite of flatfish species, are harvested almost exclusively with trawl gear, rather than with hook-and-line gear. Similarly to closed areas designed to protect overfished species taken with trawl gear, the limited entry trawl trip limit regime for more abundant stocks is gear-specific.
Flatfish fisheries are managed with more restrictive trip limits and an expanded closed area during the summer months, when participation is greater and trawl tows for flatfish are more likely to encounter overfished species. Dover sole, sablefish, thornyhead (DTS) complex limits vary only slightly throughout the year because fishing for these species is expected to largely take place on the continental slope, beyond the offshore boundary of the trawl RCAs. North of 40°10′ N. lat., the trawl RCA is primarily intended to protect canary and darkblotched rockfish; south of 40°10′ N. lat., the trawl RCA is primarily intended to protect bocaccio.
As in 2002, trawl-caught lingcod retention would be permitted throughout the year, with higher limits in the summer months. Lingcod caught incidentally during winter trawl fisheries would otherwise be discarded and thereby increase the overall lingcod discard level in the trawl fisheries. The lingcod landings limits of 800 lb (363 kg) per 2-month period in the winter months and 1,000 lb (454 kg) per 2-month period in the summer months are not high enough to give trawlers an incentive to target lingcod. Total lingcod catch is expected to be well under the lingcod OY due to fishery restrictions intended to protect other overfished species.
For 2003, the Council recommended continuing the use of differential trip limits for limited entry trawlers operating with different trawl gear configurations: bottom trawl with footropes greater than 8 inches (20.5 cm) in diameter (large footrope); bottom trawl with footropes smaller than 8 inches (20.5 cm) in diameter (small footrope); and midwater or pelagic trawl. Trawling with footropes that have roller gear or other large gear designed to bounce over tough rock piles tends to allow those vessels greater access to rocky areas where several of the overfished species congregate. Therefore, landings of shelf rockfish are prohibited if large footrope trawls (such as roller gear) are used (or are on board the vessel); small amounts of shelf rockfish bycatch may be landed if small footrope trawls are used; and, targeting more abundant shelf rockfish stocks is encouraged only if midwater trawls are used. Midwater trawl gear generally has very low bycatch of overfished species because most of those species aggregate on or near the ocean bottom, where mid-water trawl gear does not operate. To further ensure that large footrope trawl gear is not used in nearshore and continental shelf areas, bottom trawling with large footrope gear is prohibited shoreward of the RCAs. Within the RCAs, bottom trawling will be prohibited for all groundfish and mid-water trawling will be permitted only for Pacific whiting, widow rockfish and yellowtail rockfish north of 40°10′ N. lat. and only for whiting and widow rockfish south of 40°10′ N. lat. If a vessel fishes in an RCA, it may not participate in any fishing on that same trip that is inconsistent with the restrictions that apply within the RCA. For example, if a vessel participates in the shrimp fishery within the RCA, the vessel cannot on the same trip participate in the DTS fishery outside the RCA. Additionally, only one trawl gear type will be permitted on board per fishing trip. Cowcod prohibitions and CCAs apply to limited entry trawl vessels, although there are few limited entry trawl vessels operating south of Point Conception in CCA waters.
Large footrope trawls may still be used for deepwater fisheries where fewer overfished species are encountered. These fisheries primarily take Dover and rex soles, thornyheads, sablefish, and deepwater rockfish. Higher limits of yellowtail and widow rockfish are available when those species are taken with midwater trawl gear during the primary whiting season. Yellowtail rockfish taken with small footrope gear is restricted to 1,000 lb (454 kg) per month unless it is taken with flatfish, or taken during November-December. These combined yellowtail rockfish management measures are intended to allow yellowtail rockfish retention in fisheries, times and areas where incidental harvest of overfished species is lower.
Similar to the limited entry trawl fisheries, trip limit opportunities and area closures in the limited entry fixed gear fisheries are arranged to minimize opportunities for intercepting overfished species. As discussed earlier, limited entry fixed gear fisheries will be closed in times when and areas where they are expected to intercept overfished species.
North of 40°10′ N. lat., management measures to protect yelloweye rockfish constrain the limited entry fixed gear fishery by prohibiting those vessels from operating in an RCA of 27-100 fm (49-183 m) depths. Washington State waters (shore to 3 nm) are closed to commercial groundfish fishing and the 27 fm (49 m) contour is entirely within State waters, which means that limited entry fixed gear vessels operating off Washington will not have nearshore fishing opportunities. South of the Washington/Oregon border at 46°16′ N. lat. and north of 40°10′ N. lat., the primary limited entry fixed gear fishing opportunity shoreward of the RCA will be for nearshore rockfish. Similar to 2002, fisheries for minor nearshore rockfish north of 40°10′ N. lat. are managed with sublimits for species other than black and blue rockfish, to encourage targeting on these more abundant nearshore rockfish species.
South of 40°10′ N. lat., the limited entry fixed gear RCA is in 20-150 fm (37-274 m) depths to protect bocaccio and other overfished rockfish. In 2001
Limited entry fixed gear fisheries for sablefish will likely be concentrated offshore of the RCAs north and south of 40°10′ N. lat. Larger sablefish, which sell for a higher price per pound than small sablefish, tend to be found farther offshore. The primary sablefish fishery will again be held from April 1 through October 31 north of 36° N. lat. Minor slope rockfish are often caught in association with sablefish, therefore vessels will be permitted minor slope rockfish landings of up to 25 percent of the weight of sablefish landed during the months of March through October. Minor slope rockfish may not be landed unless taken with sablefish so as to discourage directed targeting on that complex. The northern overfished slope rockfish species, darkblotched rockfish and POP, are not commonly caught with fixed gear. Historically, yelloweye rockfish have been caught incidentally in hook-and-line sablefish fisheries. In 2003, however, hook-and-line sablefish fisheries will be moved offshore of yelloweye rockfish habitat through implementation of the RCAs. Yelloweye rockfish retention will again be prohibited in the 2003 limited entry fixed gear fisheries.
As in 2001-2002, limited entry fixed gear fishing for lingcod will be prohibited during January through April and during November through December. These closures are intended to protect nest-guarding lingcod during the spawning and nesting season. Nest-guarding lingcod are more available to fixed gear than to trawl gear, because lingcod nest in rocky habitat that tears trawl gear while line gear may be used successfully in rocky areas. Winter closures for fixed gear are intended to eliminate fixed gear lingcod targeting.
The open access nontrawl fishery is managed separately from the limited entry fixed-gear fishery, but overfished species protection measures are similar for both sectors. As in the past, open access cumulative trip limits continue to be applied mostly to 2-month periods, and thornyheads may not be taken and retained north of 34°27′ N. lat. Season structuring and RCAs are similar to those for the limited entry fixed gear fisheries, and implemented to protect the same overfished species. The lingcod fishery for all open access nontrawl gears is also subject to the same closures and size limits as the limited entry fixed gear fisheries. Similar to 2002, fisheries for minor nearshore rockfish north of 40°10′ N. lat. are managed with sublimits for species other than black and blue rockfish, to encourage targeting on these more abundant nearshore rockfish species. Cowcod prohibitions and closures apply to all open access vessels.
Open access cumulative limits may exceed those for limited entry. If a vessel with a limited entry permit uses open access gear (including exempted trawl gear) and the open access cumulative limit is larger, the vessel will be constrained by the smaller, limited entry cumulative limit for the entire cumulative period.
Open Access Exempted Trawl Gear
Open access exempted trawl gear (used to harvest ridgeback prawns, California halibut, sea cucumbers, pink shrimp, or spot prawns in Oregon) is managed with both “per trip” limits, cumulative trip limits, and area closures. These trip limits are similar to those in 2002, and the species-specific open access limits apply but may not exceed the overall groundfish limits. The groundfish limits in the pink shrimp fishery are 500 lb (227 kg) of groundfish per day, not to exceed 1,500 lb (680 kg) per trip in the pink shrimp fishery. For other exempted trawl gears, there is a 300 lb (136 kg) per trip limit of groundfish. The pink shrimp fishery is subject to species-specific limits that are different from other open access limits for lingcod, canary rockfish, and sablefish. As with open access nontrawl gears, thornyheads may not be taken and retained north of 34°27′ N. lat. RCAs for the limited entry trawl fishery also apply to open access exempted trawl fisheries south of 40°10′ N. lat. Cowcod prohibitions and closures apply to all open access vessels.
South of 40°10′ N. lat., the RCAs for exempted trawl gear are similar to those for limited entry trawl gear. Between 40°10′ N. lat. and 38° N. lat., trawling is prohibited in 60-250 fm (110-457 m) depths (50-250 fm (91-457 m) in January-February) and large footrope trawling is prohibited shoreward of the RCA. Between 38° N. lat. and 34°27′ N. lat., trawling is prohibited in 60-150 (110-457 m) depths (50-250 fm (91-457 m) in January-February) and large footrope trawling is prohibited shoreward of the RCA. From 34°27′ N. lat. to the U.S. border with Mexico, trawling is prohibited in 100-150 fm (183-274 m) depths and large footrope trawling is prohibited shoreward of the RCA.
In addition to the trip limit restrictions and area closures south of 40°10′ N. lat., all three States are requiring that vessels operating in their pink shrimp trawl fisheries use finfish excluders. The States of Washington and California have banned trawling for spot prawns, requiring that spot prawn fishery participants use low bycatch pot gear. Oregon is in the process of considering whether to similarly ban trawling for spot prawns. The State of California is also requiring that ridgeback shrimp trawlers use finfish excluder devices, similar to requirements in the more northern pink shrimp trawl fishery.
Recreational fisheries effort has also been constrained to protect overfished species, particularly for lingcod, canary rockfish, bocaccio, and yelloweye rockfish, which have significant recreational catches. Washington, Oregon, and California each proposed, and the Council recommended, different combinations of seasons, bag limits, and size limits to best fit the needs of their recreational fisheries, while also meeting conservation goals.
For lingcod, Washington proposed closing their recreational fishery for 5 months (January 1 - March 15, October 15 - December 31) and maintained its 2 fish bag limit and its 24 inch (61 cm) minimum size limit. For Oregon and California north of 40°10′ N. lat., the States proposed increasing the lingcod bag limit to 2 fish, and continuing the
Recreational fisheries management off Washington and Oregon will again be shaped this year by a need to maintain low yelloweye rockfish catch. Measures taken to protect yelloweye rockfish in 2002 will be maintained and expanded upon. Washington also proposed maintaining its 10 rockfish bag limit, but reducing its canary rockfish sublimit to 1 fish and prohibiting yelloweye rockfish retention. In the past, Oregon has had an overall rockfish bag limit of 10 fish. For 2003, Oregon proposed including rockfish within an overall 10 marine fish bag limit, a category that includes all marine fish except salmon, tuna, surfperch, sanddab, lingcod and baitfish (herring, anchovy, smelt, and sardine.) For Oregon anglers who take marine fish other than rockfish, this marine fish bag limit will reduce the amount of available rockfish. Within the 10 marine fish bag limit, Oregon has proposed a sublimit of no more than one canary rockfish and no more than one yelloweye rockfish. In reviewing the take of yelloweye rockfish in their recreational fisheries, the States of Washington and Oregon found that yelloweye rockfish is most frequently taken by vessels that travel offshore to target Pacific halibut. However, yelloweye rockfish are not taken while the vessel is fishing for halibut, but rather after the vessel has completed its halibut fishing and is headed for port. Therefore, prohibiting the retention of yelloweye rockfish when halibut are on the vessel should eliminate the directed harvest of yelloweye rockfish during halibut fishing trips, without causing discard of incidentally-caught yelloweye rockfish. Oregon has proposed prohibiting the retention of yelloweye rockfish during its all-depth halibut fisheries. Washington has proposed prohibiting all yelloweye rockfish retention off its shore, and will also prohibit recreational fishing for groundfish and halibut within the YRCA.
Recreational fishing restrictions proposed by California are intended to ensure that fishing mortality does not exceed limits associated with rebuilding plans for bocaccio, canary rockfish, cowcod, and lingcod. In 2001 and 2002, California's recreational fisheries management measures were not sufficiently conservative to prevent their fisheries from exceeding their set asides for overfished rockfish species. Therefore, California has proposed notably more restrictive measures for 2003. North of 40°10′ N. lat., California recreational management measures will continue to be similar to those for waters off Oregon. South of 40°10′ N. lat., where the significant majority of California recreational fisheries occur, recreational fishing will be closed entirely January through June and open only shoreward of 20 fm (37 m) July through December. The season was restructured to maximize recreational harvest opportunity while ensuring that nearshore groundfish, California scorpionfish, and lingcod shoreward of 20 fm (37 m) are not overharvested. California proposed to maintain its 10 rockfish bag limit, but set that within a 10 fish nearshore groundfish bag limit, similar to Oregon's marine fish bag limit. Within the nearshore groundfish limit, no more than 2 fish may be rock or kelp greenling and no more than three fish may be cabezon. Within the 10-rockfish bag limit, no more than two may be shallow nearshore rockfish. Unlike in previous years, bocaccio, canary rockfish and yelloweye rockfish retention will be prohibited. As with the commercial fisheries, cowcod retention will continue to be prohibited and recreational fishing within the CCAs offshore of 20 fm (37 m) will be prohibited.
At its October 28 through November 1, 2002 meeting in Foster City, CA, the Council made recommendations to modestly alter some of the management measures recommendations it had made at its September 2002 meeting. These recommendations were made at the November meeting, when the public had not expected to have opportunity to comment on 2003 management measures. In addition, these are minor changes that need not be in place on January 1. 2003. Thus, NMFS is proposing the Council's November recommendations as part of this proposed rule, but will not implement them for January-February 2003 via the emergency rule implementing management measures for those two months. The Council made the following recommended revisions to its September 2002 management measures recommendations, all of which are minor and are not expected to alter the overall effect of this management package on the environment:
1. For vessels participating in the open access exempted trawl fishery for California halibut south of 38°57′30″ N. lat., continue overall groundfish 300 lb (136 kg) per trip limit, provided that weight of groundfish landed does not exceed weight of non-groundfish species landed. However, allow up to 100 lb (45 kg) of groundfish to be landed without the vessel having to meet that ratio requirement, provided that at least one California halibut is landed.
2. For vessels participating in the open access exempted trawl fishery for California halibut south of 38°57′30″ N. lat. the monthly flatfish cumulative limit of 3,000 lb (1,361 kg), no more than 300 lb (136 kg) of which may be species other than Pacific sanddabs, is proposed to be revised so that the overall monthly cumulative limit is retained, but no more than 300 lb (136 kg) of that cumulative amount may be species other than Pacific sanddabs, sand sole, starry flounder, rock sole, curlfin sole, or California scorpionfish. Vessels fishing for sea cucumber with open access exempted trawl gear that also take California halibut would still have access to the 300 lb (136 kg) per trip limit, but only if their landings of groundfish species did not exceed their landings of non-groundfish species.
3. Continue to allow hook-and-line fishing for Pacific sanddabs within the RCAs south of 40°10′ N. lat. However, instead of allowing this fishing with up to 5 hooks per fishing line and no more than 5 lb (2.27 kg) line weight, allow this fishing with up to 12 hooks per fishing line and no more than 1 lb (.45 kg) line weight for commercial fisheries and no more than 2 lb (.91 kg) line weight for recreational fisheries.
4. Revise the coordinates of the YRCA so that they define a “C-shaped” area off the north Washington coast instead of an “L-shaped” area to better protect areas where yelloweye rockfish are found, and to be consistent with the measures proposed for the recreational fisheries for halibut.
The Magnuson-Stevens Act requires that actions taken to implement FMPs be consistent with the 10 National Standards, one of which requires that conservation and management measures shall, consistent with the conservation requirements of the Act, “take into account the importance of fishery resources to fishing communities in order to (A) provide for the sustained participation of such communities and (B), to the extent practicable, minimize adverse economic impacts on such communities.” Commercial and recreational fisheries for Pacific coast groundfish contribute to the economies and shape the cultures of numerous fishing communities in Washington, Oregon, and California. Meeting the needs of fishing communities has
West Coast groundfish intermix by species, which means that interception and incidental mortality of overfished species is inevitable even if retention of a particular species is prohibited. As discussed earlier, the Council's primary goal for 2003 was to minimize opportunities for incidental take of overfished species while allowing as much fishing opportunity of more abundant stocks as possible. To achieve this, the fishing seasons and area closures are structured both to maximize target species catch while minimizing overfished species incidental take and to allow minimal retention of overfished species where incidental take will inevitably occur. Larger area closures are intended to ensure that few vessels have opportunities to fish in waters where overfished species commonly occur.
For 2003, the Council continued the year-round fishery opportunity that is important to the fishing and processing sectors for maintaining continuous employment opportunities and maintaining consistent groundfish marketing opportunities. Depth closures and gear restrictions would modify the cumulative trip limit system to allow fishing for at least some groundfish species at all times during the year. Gear restrictions prohibit bottom trawling with roller gear in the nearshore area and on the continental shelf and allow only the use of midwater trawl on the continental shelf where most overfished species occur. Small footrope bottom trawling is permitted in the nearshore area. The concepts behind these trawl gear restrictions were first developed for the 2000 fishery by a group of industry participants who met with the GMT to develop measures that would achieve conservation goals while minimizing effects of the restrictions on the industry and coastal communities.
Allowable commercial catches of many groundfish remain low in 2003, but the Council has tried to structure the area closures to provide commercial fisheries with greater flexibility in their fishing patterns while not increasing the overall catches. For example, the offshore boundary of the trawl RCA is modified in January-February and in November-December to allow directed fishing for petrale sole in areas where and times when petrale sole are known to aggregate and to co-occur with fewer overfished stocks. New depth based closures are intended to allow fisheries access to more abundant stocks in the offshore and inshore open areas, thereby limiting the extent to which fishers and related firms would be driven out of business. Many commercial groundfish fishers have other fishing opportunities during the year, and these opportunities were taken into account. For example, the small-scale commercial fishers (and recreational fishers) in southern California would (under State regulations) still be able to fish for certain species in nearshore waters while the continental shelf is closed to protect overfished species.
Nonetheless, the effects of these 2003 management measures on some fishers and communities will be severe, particularly for those without other opportunities. For the 2003 fishery, the Council proposed stringent harvest levels intended to protect and rebuild overfished and depleted stocks. In addition to constraining OYs for overfished stocks, the Council also severely restricted harvest on more abundant stocks associated with overfished stocks. These measures were needed to ensure that rebuilding of overfished and depleted stocks could occur. However, they will cause serious socio-economic repercussions as a result of these lower harvest levels and the consequent lower landings limits.
Distribution of the economic effect of the 2003 management measures will depend on how well fishers can adapt to the restrictions. Some user groups, particularly those able to use midwater trawl gear, will have a greater opportunity to harvest than they would have had without gear restrictions, because proposed restrictions allow fishers to use gear with lower incidental catch of the depleted rockfish. Other fishers will not be able to maintain a viable operation at the reduced harvest levels. The Council prepared an EIS for this action, which includes a discussion of the economic and social effects of these management measures on coastal communities (see
Cumulative trip limits are set into tables, with explanations in section IV. For 2003, NMFS has separated tables for each fishing sector into northern and southern area tables. The industry is cautioned not to rely on the tables alone. The text in Section IV. provides cumulative trip limit definitions and periods, size limit definitions and conversions, and other information that cannot be readily included in a table but must be understood in order to correctly use the tables. For the first time in 2003, gear regulations and reference coordinates are being proposed as a regulatory amendment to the regulations at 50 CFR part 660. Historically, NMFS has published these regulatory measures as annual specifications. The sablefish allocations and nontrawl sablefish management, Pacific whiting allocations and seasons, and “per trip” limits for black rockfish off Washington State are still presented in text in paragraphs IV.B. Trip limits for exempted trawl gear in the open access fishery (Table 5 and paragraph IV.C.), recreational management measures (paragraph IV.D.), and tribal allocations and management measures (paragraph V.) still remain in the text.
Cumulative trip limits are applied during the time periods and in the areas indicated in Tables 3-5 of Section IV. The cumulative trip limit may be taken at any time within the applicable cumulative trip limit period. All cumulative trip limit periods start at 0001 hours, local time, on the specified beginning date.
For the reasons stated above, the Assistant Administrator for Fisheries, NOAA (Assistant Administrator), concurs with the Council's recommendations and announces the following management actions for 2003, including measures that are unchanged from 2002 and new measures.
The following definitions and provisions apply to the 2002 management measures, unless otherwise specified in a subsequent
(1)
(a) A per trip limit is the total allowable amount of a groundfish species or species group, by weight, or by percentage of weight of legal fish on board, that may be taken and retained, possessed, or landed per vessel from a single fishing trip.
(b) A daily trip limit is the maximum amount that may be taken and retained,
(c) A weekly trip limit is the maximum amount that may be taken and retained, possessed, or landed per vessel in 7 consecutive days, starting at 0001 hours l.t. on Sunday and ending at 2400 hours l.t. on Saturday. Weekly trip limits may not be accumulated during multiple week trips. If a calendar week includes days within two different months, a vessel is not entitled to two separate weekly limits during that week.
(d) A cumulative trip limit is the maximum amount that may be taken and retained, possessed, or landed per vessel in a specified period of time without a limit on the number of landings or trips, unless otherwise specified. The cumulative trip limit periods for limited entry and open access fisheries, which start at 0001 hours l.t. and end at 2400 hours l.t., are as follows, unless otherwise specified:
(i) The 2-month periods are: January 1-February 28, March 1-April 30, May 1-June 30, July 1-August 31, September 1-October 31, and, November 1-December 31.
(ii) One month means the first day through the last day of the calendar month.
(iii) One week means 7 consecutive days, Sunday through Saturday.
(2)
(3)
(4)
(5)
(6)
(a)
(b)
(c)
(d)
(i) The minimum size for headed sablefish, which corresponds to 20 inches (51 cm) total length for whole fish, is 14 inches (36 cm).
(ii) The conversion factor established by the State where the fish is or will be landed will be used to convert the processed weight to round weight for purposes of applying the trip limit. (The conversion factor currently is 1.6 in Washington, Oregon, and California. However, the State conversion factors may differ; fishers should contact fishery enforcement officials in the State where the fish will be landed to determine that State's official conversion factor.)
(e)
(i)
(ii)
(A)
(B)
(7)
(8)
(9)
(10)
(11)
(12)
(a)
(b)
(c)
(d)
(i) If a vessel takes and retains minor slope rockfish north of 38° N. lat., that vessel is also permitted to take and retain, possess or land splitnose rockfish up to its cumulative limit south of 38° N. lat., even if splitnose rockfish were a part of the landings from minor slope rockfish taken and retained north of 38° N. lat. [Note: A vessel that takes and retains minor slope rockfish on both sides of the management line in a single cumulative limit period is subject to the more restrictive cumulative limit for minor slope rockfish during that period.]
(ii) If a vessel takes and retains minor slope rockfish south of 38° N. lat., that vessel is also permitted to take and retain, possess or land POP up to its cumulative limit north of 38° N. lat., even if POP were a part of the landings from minor slope rockfish taken and retained south of 38° N. lat. [Note: A vessel that takes and retains minor slope rockfish on both sides of the management line in a single cumulative limit period is subject to the more restrictive cumulative limit for minor slope rockfish during that period.]
(iii) If a vessel takes and retains minor shelf rockfish south of 40°10′ N. lat., that vessel is also permitted to take and retain, possess, or land yellowtail rockfish up to its cumulative limits north of 40°10′ N. lat., even if yellowtail rockfish is part of the landings from minor shelf rockfish taken and retained south of 40°10′ N. lat. Widow rockfish is included in overall shelf rockfish limits for all gear groups. [Note: A vessel that takes and retains minor shelf rockfish on both sides of the management line in a single cumulative limit period is subject to the more restrictive cumulative limit for minor shelf rockfish during that period.]
(e) “DTS complex.” For 2003, there are differential trip limits for the “DTS complex” (Dover sole, shortspine thornyhead, longspine thornyhead, sablefish) north and south of the management line at 40°10′ N. lat. Vessels operating in the limited entry trawl fishery are subject to the crossover provisions in this paragraph IV.A.(12) when making landings that include any one of the four species in the “DTS complex.”
(f)
(13)
(a) For vessels with a limited entry permit:
(i) Coastwide - widow rockfish, canary rockfish, darkblotched rockfish, yelloweye rockfish, shortbelly rockfish, minor nearshore rockfish, minor shelf rockfish, minor slope rockfish,
(ii) North of 40°10′ N. lat. - POP, yellowtail rockfish, and, for fixed gear, black rockfish and blue rockfish;
(iii) South of 40°10′ N. lat.- minor shallow nearshore rockfish, minor deeper nearshore rockfish, chilipepper rockfish, bocaccio rockfish, splitnose rockfish, and Pacific sanddabs.
(b) For open access vessels (vessels without a limited entry
permit):
(i) Coastwide - widow rockfish, canary rockfish, darkblotched rockfish, yelloweye rockfish, minor nearshore rockfish, minor shelf rockfish, minor slope rockfish, Dover sole, arrowtooth flounder, petrale sole, rex sole, other flatfish, lingcod, sablefish, Pacific whiting, and Pacific sanddabs;
(ii) North of 40°10′ N. lat. - black rockfish, blue rockfish, Pacific ocean perch, yellowtail rockfish;
(iii) South of 40°10′ N. lat.- minor shall nearshore rockfish, minor deeper nearshore rockfish, chilipepper rockfish, bocaccio rockfish, splitnose rockfish;
(iv) South of Point Conception—thornyheads.
(14)
(a)
(b)
(ii)
(iii)
(iv)
(c)
(d)
(15)
(a) For a vessel in the “B” platoon, cumulative trip limit periods begin on the 16th of the month at 0001 hours, l.t., and end at 2400 hours, l.t., on the 15th of the month. Therefore, the management measures announced herein that are effective on January 1, 2003, for the “A” platoon will be effective on January 16, 2003, for the “B” platoon. The effective date of any inseason changes to the cumulative trip limits also will be delayed for 2 weeks for the “B” platoon, unless otherwise specified.
(b) A vessel authorized to operate in the “B” platoon may take and retain, but may not land, groundfish from January 1, 2003, through January 15, 2003.
(c) A vessel authorized to operate in the “B” platoon will have the same cumulative trip limits for the November 16, 2003, through December 31, 2003, period as a vessel operating in the “A” platoon has for the November 1, 2002, through December 31, 2002 period.
(16)
(17)
(18)
(19)
(a)
(b)
(c)
(i) The trawl RCA is closed to limited entry groundfish trawl fishing coastwide and to open access exempted trawl fishing (except for pink shrimp trawling) south of 40°10′ N. lat. Fishing with limited entry groundfish trawl gear is prohibited within the trawl RCA north of 40°10′ N. lat. and fishing with any trawl gear is prohibited within the trawl RCA south of 40°10′ N. lat., unless that vessel is trawling for pink shrimp. Coastwide, it is unlawful to take and retain, possess, or land groundfish taken with limited entry groundfish trawl gear in the trawl RCA. South of 40°10′ N. lat., it is unlawful to take and retain, possess, or land any species of fish taken with any type of trawl gear in the trawl RCA. Trawl vessels may transit through the trawl RCA, with or without groundfish on board, provided all groundfish trawl gear is stowed either: (1) below deck; or (2) if the gear cannot readily be moved, in a secured and covered manner, detached from all towing lines, so that it is rendered unusable for fishing; or (3) remaining on deck uncovered if the trawl doors are hung from their stanchions and the net is disconnected from the doors. These restrictions do not apply to vessels fishing with midwater trawl gear for Pacific whiting or taking and retaining yellowtail rockfish or widow rockfish in association with Pacific whiting caught with midwater trawl gear or to taking and retaining yellowtail or widow rockfish with midwater trawl gear when trip limits are authorized for those species (November-December 2003.) If a vessel fishes in an RCA, it may not participate in any fishing on that trip that is inconsistent with the restrictions that apply within the RCA. For example, if a vessel participates in the pink shrimp fishery within the RCA, the vessel cannot on the same trip participate in the DTS fishery outside of the RCA. Nothing in these Federal regulations supercede any State regulations that may prohibit trawling shoreward of the 3 nm State waters boundary line.
(ii) Between the U.S. border with Canada and 40°10′ N. lat., the trawl RCA is defined along an eastern, inshore boundary approximating 100 fm (183 m) in January through June and October through December, and approximating 75 fm (137 m) in July and August. Between 40°10′ N. lat. and 34°27′ N. lat., the trawl RCA is defined along an eastern, inshore boundary approximating 50 fm (91 m) in January and February and 60 fm (110 m) in March through December. Between 34°27′ N. lat. and the U.S. border with Mexico, along the mainland coast of California, the trawl RCA is defined along an eastern, inshore boundary approximating 100 fm (183 m) throughout the year. Between 34°27′ N. lat. and the U.S. border with Mexico, adjacent to the islands offshore of California, the trawl RCA is defined along an inshore boundary approximating 20 fm (37 m) throughout the year. Boundary coordinates are provided below at paragraph (e) of this section.
(iii) Between the U.S. border with Canada and 38° N. lat., the trawl RCA is defined along a western, offshore boundary approximating 250 fm (457 m) in March through October, and approximating 250 fm (457 m) with some modifications to provide open areas to allow winter petrale sole fishing in January, February, November, and December. Between 38° N. lat. and the U.S. border with Mexico, the trawl RCA is defined along a western, offshore boundary approximating 150 fm (274 m) throughout the year. Boundary coordinates are provided below at paragraph (e) of this section.
(i) The non-trawl RCA is closed to non-trawl gear (limited entry or open access longline and pot or trap, open access hook-and-line, pot or trap, gillnet, set net, trammel net and spear) fishing for groundfish. Fishing with non-trawl gear is prohibited within the non-trawl gear RCA. It is unlawful to take and retain, possess, or land groundfish taken with non-trawl gear in the non-trawl gear RCA. Limited entry fixed gear and open access non-trawl gear vessels may transit through the non-trawl gear RCA, with or without groundfish on board. These restrictions do not apply to vessels fishing for species other than groundfish with non-trawl gear. If a vessel fishes in an RCA, it may not participate in any fishing on that trip that is inconsistent with the restrictions that apply within the RCA. For example, if a vessel participates in the salmon troll fishery within the RCA, the vessel cannot on the same trip participate in the sablefish fishery outside of the RCA.
(ii) Between the U.S. border with Canada and 46°16′ N. lat., the non-trawl gear RCA extends to the shoreline. Between 46°16′ N. lat. and 40°10′ N. lat., the non-trawl gear RCA is defined along an eastern, inshore boundary approximating 27 fm (49 m) throughout the year. Between 40°10′ N. lat. and the U.S. border with Mexico, the non-trawl gear RCA is defined along an eastern, inshore boundary approximating 20 fm
(iii) Between the U.S. border with Canada and 40°10′ N. lat., the non-trawl gear RCA is defined along a western, offshore boundary approximating 100 fm (183 m) throughout the year. Between 40°10′ N. lat. and the U.S. border with Mexico, the trawl RCA is defined along a western, offshore boundary approximating 150 fm (274 m) throughout the year. Boundary coordinates are provided below at paragraph (e) of this section.
(e)
(i) The 27-fm (49-m) depth contour used between 46°16′ N. lat. and 40°10′ N. lat. as an eastern boundary for the non-trawl RCA is defined by straight lines connecting all of the following points in the order stated:
(1) 46°16.00′ N. lat., 124°12.39′ W. long.;
(2) 46°14.85′ N. lat., 124°12.39′ W. long.;
(3) 46°3.95′ N. lat., 124°3.64′ W. long.;
(4) 45°43.14′ N. lat., 124°0.17′ W. long.;
(5) 45°23.33′ N. lat., 124°1.99′ W. long.;
(6) 45°9.54′ N. lat., 124°1.65′ W. long.;
(7) 44°39.99′ N. lat., 124°8.67′ W. long.;
(8) 44°20.86′ N. lat., 124°10.31′ W. long.;
(9) 43°37.11′ N. lat., 124°14.91′ W. long.;
(10) 43°27.54′ N. lat., 124°18.98′ W. long.;
(11) 43°20.68′ N. lat., 124°25.53′ W. long.;
(12) 43°15.08′ N. lat., 124°27.17′ W. long.;
(13) 43°6.89′ N. lat., 124°29.65′ W. long.;
(14) 43°1.02′ N. lat., 124°29.70′ W. long.;
(15) 42°52.67′ N. lat., 124°36.10′ W. long.;
(16) 42°45.96′ N. lat., 124°37.95′ W. long.;
(17) 42°45.80′ N. lat., 124°35.41′ W. long.;
(18) 42°38.46′ N. lat., 124°27.49′ W. long.;
(19) 42°35.29′ N. lat., 124°26.85′ W. long.;
(20) 42°31.49′ N. lat., 124°31.40′ W. long.;
(21) 42°29.06′ N. lat., 124°32.24′ W. long.;
(22) 42°14.26′ N. lat., 124°26.27′ W. long.;
(23) 42°4.86′ N. lat., 124°21.94′ W. long.;
(24) 42°0.10′ N. lat., 124°20.99′ W. long.;
(25) 42°0.00′ N. lat., 124°21.03′ W. long.;
(26) 41°56.33′ N. lat., 124°20.34′ W. long.;
(27) 41°50.93′ N. lat., 124°23.74′ W. long.;
(28) 41°41.83′ N. lat., 124°16.99′ W. long.;
(29) 41°35.48′ N. lat., 124°16.35′ W. long.;
(30) 41°23.51′ N. lat., 124°10.48′ W. long.;
(31) 41°4.62′ N. lat., 124°14.44′ W. long.;
(32) 40°54.28′ N. lat., 124°13.90′ W. long.;
(33) 40°40.37′ N. lat., 124°26.21′ W. long.;
(34) 40°34.03′ N. lat., 124°27.36′ W. long.;
(35) 40°28.88′ N. lat., 124°32.41′ W. long.;
(36) 40°24.82′ N. lat., 124°29.56′ W. long.;
(37) 40°22.64′ N. lat., 124°24.05′ W. long.;
(38) 40°18.67′ N. lat., 124°21.90′ W. long.;
(39) 40°14.23′ N. lat., 124°23.72′ W. long.; and
(40) 40°10.00′ N. lat., 124°17.22′ W. long.;
(ii) The 75-fm (137-m) depth contour used north of 40°10′ N. lat. as an eastern boundary for the trawl RCA in the months of July and August is defined by straight lines connecting all of the following points in the order stated:
(1) 48°14.58′ N. lat., 125°42.47′ W. long.;
(2) 48°20.26′ N. lat., 125°23.03′ W. long.;
(3) 48°23.00′ N. lat., 124°50.00′ W. long.;
(4) 48°17.10′ N. lat., 124°54.82′ W. long.;
(5) 48°05.10′ N. lat., 124°59.40′ W. long.;
(6) 48°04.98′ N. lat., 125°10.02′ W. long.;
(7) 47°54.00′ N. lat., 125°04.98′ W. long.;
(8) 47°44.52′ N. lat., 125°00.00′ W. long.;
(9) 47°42.00′ N. lat., 124°58.98′ W. long.;
(10) 47°35.52′ N. lat., 124°55.50′ W. long.;
(11) 47°22.02′ N. lat., 124°44.40′ W. long.;
(12) 47°16.98′ N. lat., 124°45.48′ W. long.;
(13) 47°10.98′ N. lat., 124°48.48′ W. long.;
(14) 47°04.98′ N. lat., 124°49.02′ W. long.;
(15) 46°57.98′ N. lat., 124°46.50′ W. long.;
(16) 46°54.00′ N. lat., 124°45.00′ W. long.;
(17) 46°48.48′ N. lat., 124°44.52′ W. long.;
(18) 46°40.02′ N. lat., 124°36.00′ W. long.;
(19) 46°34.09′ N. lat., 124°27.03′ W. long.;
(20) 46°24.64′ N. lat., 124°30.33′ W. long.;
(21) 46°19.98′ N. lat., 124°36.00′ W. long.;
(22) 46°18.14′ N. lat., 124°34.26′ W. long.;
(23) 46°18.72′ N. lat., 124°22.68′ W. long.;
(24) 46°14.64′ N. lat., 124°22.54′ W. long.;
(25) 46°11.08′ N. lat., 124°30.74′ W. long.;
(26) 46°4.28′ N. lat., 124°31.49′ W. long.;
(27) 45°55.97′ N. lat., 124°19.95′ W. long.;
(28) 45°44.97′ N. lat., 124°15.96′ W. long.;
(29) 45°43.14′ N. lat., 124°21.86′ W. long.;
(30) 45°34.44′ N. lat., 124°14.44′ W. long.;
(31) 45°15.49′ N. lat., 124°11.49′ W. long.;
(32) 44°57.31′ N. lat., 124°15.03′ W. long.;
(33) 44°43.90′ N. lat., 124°28.88′ W. long.;
(34) 44°28.64′ N. lat., 124°35.67′ W. long.;
(35) 44°25.31′ N. lat., 124°43.08′ W. long.;
(36) 44°17.15′ N. lat., 124°47.98′ W. long.;
(37) 44°13.67′ N. lat., 124°54.41′ W. long.;
(38) 43°56.85′ N. lat., 124°55.32′ W. long.;
(39) 43°57.50′ N. lat., 124°41.23′ W. long.;
(40) 44°1.79′ N. lat., 124°38.00′ W. long.;
(41) 44°2.16′ N. lat., 124°32.62′ W. long.;
(42) 43°58.15′ N. lat., 124°30.39′ W. long.;
(43) 43°53.25′ N. lat., 124°31.39′ W. long.;
(44) 43°35.56′ N. lat., 124°28.17′ W. long.;
(45) 43°21.84′ N. lat., 124°36.07′ W. long.;
(46) 43°19.73′ N. lat., 124°34.86′ W. long.;
(47) 43°9.38′ N. lat., 124°39.30′ W. long.;
(48) 43°7.11′ N. lat., 124°37.66′ W. long.;
(49) 42°56.27′ N. lat., 124°43.29′ W. long.;
(50) 42°45.00′ N. lat., 124°41.50′ W. long.;
(51) 42°39.72′ N. lat., 124°39.11′ W. long.;
(52) 42°32.88′ N. lat., 124°40.13′ W. long.;
(53) 42°32.30′ N. lat., 124°39.04′ W. long.;
(54) 42°26.96′ N. lat., 124°44.31′ W. long.;
(55) 42°24.11′ N. lat., 124°42.16′ W. long.;
(56) 42°21.10′ N. lat., 124°35.46′ W. long.;
(57) 42°14.72′ N. lat., 124°32.30′ W. long.;
(58) 42°9.24′ N. lat., 124°32.04′ W. long.;
(59) 42°1.89′ N. lat., 124°32.70′ W. long.;
(60) 42°0.03′ N. lat., 124°32.02′ W. long.;
(61) 42°0.00′ N. lat., 124°32.02′ W. long.;
(62) 41°46.18′ N. lat., 124°26.60′ W. long.;
(63) 41°29.22′ N. lat., 124°28.04′ W. long.;
(64) 41°9.62′ N. lat., 124°19.75′ W. long.;
(65) 40°50.71′ N. lat., 124°23.80′ W. long.;
(66) 40°43.35′ N. lat., 124°29.30′ W. long.;
(67) 40°40.24′ N. lat., 124°29.86′ W. long.;
(68) 40°37.50′ N. lat., 124°28.68′ W. long.;
(69) 40°34.42′ N. lat., 124°29.65′ W. long.;
(70) 40°34.74′ N. lat., 124°34.61′ W. long.;
(71) 40°31.70′ N. lat., 124°37.13′ W. long.;
(72) 40°25.03′ N. lat., 124°34.77′ W. long.;
(73) 40°23.58′ N. lat., 124°31.49′ W. long.;
(74) 40°23.64′ N. lat., 124°28.35′ W. long.;
(75) 40°22.53′ N. lat., 124°24.76′ W. long.;
(76) 40°21.46′ N. lat., 124°24.86′ W. long.;
(77) 40°21.74′ N. lat., 124°27.63′ W. long.;
(78) 40°19.76′ N. lat., 124°28.15′ W. long.;
(79) 40°18.00′ N. lat., 124°25.38′ W. long.;
(80) 40°18.54′ N. lat., 124°22.94′ W. long.;
(81) 40°15.55′ N. lat., 124°25.75′ W. long.;
(82) 40°16.06′ N. lat., 124°30.48′ W. long.;
(83) 40°15.75′ N. lat., 124°31.69′ W. long.; and
(84) 40°10.00′ N. lat., 124°21.28′ W. long.
(iii) The 100-fm (183-m) depth contour used north of 40°10′ N. lat. as an eastern boundary for the trawl RCA and as a western boundary for the non-trawl RCA is defined by straight lines connecting all of the following points in the order stated:
(1) 48°15.00′ N. lat., 125°41.00′ W. long.;
(2) 48°14.00′ N. lat., 125°36.00′ W. long.;
(3) 48°09.50′ N. lat., 125°40.50′ W. long.;
(4) 48°08.00′ N. lat., 125°38.00′ W. long.;
(5) 48°05.00′ N. lat., 125°37.25′ W. long.;
(6) 48°02.60′ N. lat., 125°34.70′ W. long.;
(7) 47°59.00′ N. lat., 125°34.00′ W. long.;
(8) 47°57.26′ N. lat., 125°29.82′ W. long.;
(9) 47°59.87′ N. lat., 125°25.81′ W. long.;
(10) 48°01.08′ N. lat., 125°24.53′ W. long.;
(11) 48°02.08′ N. lat., 125°22.98′ W. long.;
(12) 48°02.97′ N. lat., 125°22.89′ W. long.;
(13) 48°04.47′ N. lat., 125°21.75′ W. long.;
(14) 48°06.11′ N. lat., 125°19.33′ W. long.;
(15) 48°07.95′ N. lat., 125°18.55′ W. long.;
(16) 48°09.00′ N. lat., 125°18.00′ W. long.;
(17) 48°11.31′ N. lat., 125°17.55′ W. long.;
(18) 48°14.60′ N. lat., 125°13.46′ W. long.;
(19) 48°16.67′ N. lat., 125°14.34′ W. long.;
(20) 48°18.73′ N. lat., 125°14.41′ W. long.;
(21) 48°19.98′ N. lat., 125°13.24′ W. long.;
(22) 48°22.95′ N. lat., 125°10.79′ W. long.;
(23) 48°21.61′ N. lat., 125°02.54′ W. long.;
(24) 48°23.00′ N. lat., 124°49.34′ W. long.;
(25) 48°17.00′ N. lat., 124°56.50′ W. long.;
(26) 48°06.00′ N. lat., 125°00.00′ W. long.;
(27) 48°04.62′ N. lat., 125°01.73′ W. long.;
(28) 48°04.84′ N. lat., 125°04.03′ W. long.;
(29) 48°06.41′ N. lat., 125°06.51′ W. long.;
(30) 48°06.00′ N. lat., 125°08.00′ W. long.;
(31) 48°07.28′ N. lat., 125°11.14′ W. long.;
(32) 48°03.45′ N. lat., 125°16.66′ W. long.;
(33) 47°59.50′ N. lat., 125°18.88′ W. long.;
(34) 47°58.68′ N. lat., 125°16.19′ W. long.;
(35) 47°56.62′ N. lat., 125°13.50′ W. long.;
(36) 47°53.71′ N. lat., 125°11.96′ W. long.;
(37) 47°51.70′ N. lat., 125°09.38′ W. long.;
(38) 47°49.95′ N. lat., 125°06.07′ W. long.;
(39) 47°49.00′ N. lat., 125°03.00′ W. long.;
(40) 47°46.95′ N. lat., 125°04.00′ W. long.;
(41) 47°46.58′ N. lat., 125°03.15′ W. long.;
(42) 47°44.07′ N. lat., 125°04.28′ W. long.;
(43) 47°43.32′ N. lat., 125°04.41′ W. long.;
(44) 47°40.95′ N. lat., 125°04.14′ W. long.;
(45) 47°39.58′ N. lat., 125°04.97′ W. long.;
(46) 47°36.23′ N. lat., 125°02.77′ W. long.;
(47) 47°34.28′ N. lat., 124°58.66′ W. long.;
(48) 47°32.17′ N. lat., 124°57.77′ W. long.;
(49) 47°30.27′ N. lat., 124°56.16′ W. long.;
(50) 47°30.60′ N. lat., 124°54.80′ W. long.;
(51) 47°29.26′ N. lat., 124°52.21′ W. long.;
(52) 47°28.21′ N. lat., 124°50.65′ W. long.;
(53) 47°27.38′ N. lat., 124°49.34′ W. long.;
(54) 47°25.61′ N. lat., 124°48.26′ W. long.;
(55) 47°23.54′ N. lat., 124°46.42′ W. long.;
(56) 47°20.64′ N. lat., 124°45.91′ W. long.;
(57) 47°17.99′ N. lat., 124°45.59′ W. long.;
(58) 47°18.20′ N. lat., 124°49.12′ W. long.;
(59) 47°15.01′ N. lat., 124°51.09′ W. long.;
(60) 47°12.61′ N. lat., 124°54.89′ W. long.;
(61) 47°08.22′ N. lat., 124°56.53′ W. long.;
(62) 47°08.50′ N. lat., 124°54.95′ W. long.;
(63) 47°01.92′ N. lat., 124°57.74′ W. long.;
(64) 47°01.14′ N. lat., 124°59.35′ W. long.;
(65) 46°58.48′ N. lat., 124°57.81′ W. long.;
(66) 46°56.79′ N. lat., 124°56.03′ W. long.;
(67) 46°58.01′ N. lat., 124°55.09′ W. long.;
(68) 46°55.07′ N. lat., 124°54.14′ W. long.;
(69) 46°59.60′ N. lat., 124°49.79′ W. long.;
(70) 46°58.72′ N. lat., 124°48.78′ W. long.;
(71) 46°54.45′ N. lat., 124°48.36′ W. long.;
(72) 46°53.99′ N. lat., 124°49.95′ W. long.;
(73) 46°54.38′ N. lat., 124°52.73′ W. long.;
(74) 46°52.38′ N. lat., 124°52.02′ W. long.;
(75) 46°48.93′ N. lat., 124°49.17′ W. long.;
(76) 46°41.50′ N. lat., 124°43.00′ W. long.;
(77) 46°34.50′ N. lat., 124°28.50′ W. long.;
(78) 46°29.00′ N. lat., 124°30.00′ W. long.;
(79) 46°20.00′ N. lat., 124°36.50′ W. long.;
(80) 46°18.00′ N. lat., 124°38.00′ W. long.;
(81) 46°17.00′ N. lat., 124°35.50′ W. long.;
(82) 46°17.00′ N. lat., 124°22.50′ W. long.;
(83) 46°15.02′ N. lat., 124°23.77′ W. long.;
(84) 46°12.00′ N. lat., 124°35.00′ W. long.;
(85) 46°10.50′ N. lat., 124°39.00′ W. long.;
(86) 46°8.90′ N. lat., 124°39.11′ W. long.;
(87) 46°0.97′ N. lat., 124°38.56′ W. long.;
(88) 45°57.04′ N. lat., 124°36.42′ W. long.;
(89) 45°54.29′ N. lat., 124°40.02′ W. long.;
(90) 45°47.19′ N. lat., 124°35.58′ W. long.;
(91) 45°41.75′ N. lat., 124°28.32′ W. long.;
(92) 45°34.16′ N. lat., 124°24.23′ W. long.;
(93) 45°27.10′ N. lat., 124°21.74′ W. long.;
(94) 45°17.14′ N. lat., 124°17.85′ W. long.;
(95) 44°59.51′ N. lat., 124°19.34′ W. long.;
(96) 44°49.30′ N. lat., 124°29.97′ W. long.;
(97) 44°45.64′ N. lat., 124°33.89′ W. long.;
(98) 44°33.00′ N. lat., 124°36.88′ W. long.;
(99) 44°28.20′ N. lat., 124°44.72′ W. long.;
(100) 44°13.16′ N. lat., 124°56.36′ W. long.;
(101) 43°56.34′ N. lat., 124°55.74′ W. long.;
(102) 43°56.47′ N. lat., 124°34.61′ W. long.;
(103) 43°42.73′ N. lat., 124°32.41′ W. long.;
(104) 43°30.92′ N. lat., 124°34.43′ W. long.;
(105) 43°17.44′ N. lat., 124°41.16′ W. long.;
(106) 43°7.04′ N. lat., 124°41.25′ W. long.;
(107) 43°3.45′ N. lat., 124°44.36′ W. long.;
(108) 43°3.90′ N. lat., 124°50.81′ W. long.;
(109) 42°55.70′ N. lat., 124°52.79′ W. long.;
(110) 42°54.12′ N. lat., 124°47.36′ W. long.;
(111) 42°43.99′ N. lat., 124°42.38′ W. long.;
(112) 42°38.23′ N. lat., 124°41.25′ W. long.;
(113) 42°33.02′ N. lat., 124°42.38′ W. long.;
(114) 42°31.89′ N. lat., 124°42.04′ W. long.;
(115) 42°30.08′ N. lat., 124°42.67′ W. long.;
(116) 42°28.27′ N. lat., 124°47.08′ W. long.;
(117) 42°25.22′ N. lat., 124°43.51′ W. long.;
(118) 42°19.22′ N. lat., 124°37.92′ W. long.;
(119) 42°16.28′ N. lat., 124°36.11′ W. long.;
(120) 42°5.65′ N. lat., 124°34.92′ W. long.;
(121) 42°0.00′ N. lat., 124°35.27′ W. long.;
(122) 42°00.00′ N. lat., 124°35.26′ W. long.;
(123) 41°47.04′ N. lat., 124°27.64′ W. long.;
(124) 41°32.92′ N. lat., 124°28.79′ W. long.;
(125) 41°24.17′ N. lat., 124°28.46′ W. long.;
(126) 41°10.12′ N. lat., 124°20.50′ W. long.;
(127) 40°51.41′ N. lat., 124°24.38′ W. long.;
(128) 40°43.71′ N. lat., 124°29.89′ W. long.;
(129) 40°40.14′ N. lat., 124°30.90′ W. long.;
(130) 40°37.35′ N. lat., 124°29.05′ W. long.;
(131) 40°34.76′ N. lat., 124°29.82′ W. long.;
(132) 40°36.78′ N. lat., 124°37.06′ W. long.;
(133) 40°32.44′ N. lat., 124°39.58′ W. long.;
(134) 40°24.82′ N. lat., 124°35.12′ W. long.;
(135) 40°23.30′ N. lat., 124°31.60′ W. long.;
(136) 40°23.52′ N. lat., 124°28.78′ W. long.;
(137) 40°22.43′ N. lat., 124°25.00′ W. long.;
(138) 40°21.72′ N. lat., 124°24.94′ W. long.;
(139) 40°21.87′ N. lat., 124°27.96′ W. long.;
(140) 40°21.40′ N. lat., 124°28.74′ W. long.;
(141) 40°19.68′ N. lat., 124°28.49′ W. long.;
(142) 40°17.73′ N. lat., 124°25.43′ W. long.;
(143) 40°18.37′ N. lat., 124°23.35′ W. long.;
(144) 40°15.75′ N. lat., 124°26.05′ W. long.;
(145) 40°16.75′ N. lat., 124°33.71′ W. long.;
(146) 40°16.29′ N. lat., 124°34.36′ W. long.; and
(147) 40°10.00′ N. lat., 124°21.12′ W. long.
(iv) The 250-fm (457-m) depth contour used north of 38° N. lat. for March through October as a western boundary for the trawl RCA is defined by straight lines connecting all of the following points in the order stated:
(1) 48°14.68′ N. lat., 125°42.10′ W. long.;
(2) 48°12.83′ N. lat., 125°39.71′ W. long.;
(3) 48°13.00′ N. lat., 125°39.00′ W. long.;
(4) 48°12.73′ N. lat., 125°38.87′ W. long.;
(5) 48°12.43′ N. lat., 125°39.12′ W. long.;
(6) 48°11.83′ N. lat., 125°40.01′ W. long.;
(7) 48°11.78′ N. lat., 125°41.70′ W. long.;
(8) 48°10.62′ N. lat., 125°43.41′ W. long.;
(9) 48°09.23′ N. lat., 125°42.80′ W. long.;
(10) 48°08.79′ N. lat., 125°43.79′ W. long.;
(11) 48°08.50′ N. lat., 125°45.00′ W. long.;
(12) 48°07.43′ N. lat., 125°46.36′ W. long.;
(13) 48°06.00′ N. lat., 125°46.50′ W. long.;
(14) 48°05.38′ N. lat., 125°42.82′ W. long.;
(15) 48°04.19′ N. lat., 125°40.40′ W. long.;
(16) 48°03.50′ N. lat., 125°37.00′ W. long.;
(17) 48°01.50′ N. lat., 125°40.00′ W. long.;
(18) 47°57.00′ N. lat., 125°37.00′ W. long.;
(19) 47°55.21′ N. lat., 125°37.22′ W. long.;
(20) 47°54.02′ N. lat., 125°36.57′ W. long.;
(21) 47°53.67′ N. lat., 125°35.06′ W. long.;
(22) 47°54.14′ N. lat., 125°32.35′ W. long.;
(23) 47°55.50′ N. lat., 125°28.56′ W. long.;
(24) 47°57.03′ N. lat., 125°26.52′ W. long.;
(25) 47°57.98′ N. lat., 125°25.08′ W. long.;
(26) 48°00.54′ N. lat., 125°24.38′ W. long.;
(27) 48°01.45′ N. lat., 125°23.70′ W. long.;
(28) 48°01.97′ N. lat., 125°22.34′ W. long.;
(29) 48°03.68′ N. lat., 125°21.20′ W. long.;
(30) 48°01.96′ N. lat., 125°19.56′ W. long.;
(31) 48°00.98′ N. lat., 125°20.43′ W. long.;
(32) 48°00.00′ N. lat., 125°20.68′ W. long.;
(33) 47°58.00′ N. lat., 125°20.00′ W. long.;
(34) 47°57.65′ N. lat., 125°19.18′ W. long.;
(35) 47°58.00′ N. lat., 125°18.00′ W. long.;
(36) 47°56.59′ N. lat., 125°18.15′ W. long.;
(37) 47°51.30′ N. lat., 125°18.32′ W. long.;
(38) 47°49.88′ N. lat., 125°14.49′ W. long.;
(39) 47°49.00′ N. lat., 125°11.00′ W. long.;
(40) 47°47.99′ N. lat., 125°07.31′ W. long.;
(41) 47°46.47′ N. lat., 125°08.63′ W. long.;
(42) 47°46.00′ N. lat., 125°06.00′ W. long.;
(43) 47°44.50′ N. lat., 125°07.50′ W. long.;
(44) 47°43.39′ N. lat., 125°06.57′ W. long.;
(45) 47°42.37′ N. lat., 125°05.74′ W. long.;
(46) 47°40.61′ N. lat., 125°06.48′ W. long.;
(47) 47°37.43′ N. lat., 125°07.33′ W. long.;
(48) 47°33.68′ N. lat., 125°04.80′ W. long.;
(49) 47°30.00′ N. lat., 125°00.00′ W. long.;
(50) 47°28.00′ N. lat., 124°58.50′ W. long.;
(51) 47°28.88′ N. lat., 124°54.71′ W. long.;
(52) 47°27.70′ N. lat., 124°51.87′ W. long.;
(53) 47°24.84′ N. lat., 124°48.45′ W. long.;
(54) 47°21.76′ N. lat., 124°47.42′ W. long.;
(55) 47°18.84′ N. lat., 124°46.75′ W. long.;
(56) 47°19.82′ N. lat., 124°51.43′ W. long.;
(57) 47°18.13′ N. lat., 124°54.25′ W. long.;
(58) 47°13.50′ N. lat., 124°54.69′ W. long.;
(59) 47°15.00′ N. lat., 125°00.00′ W. long.;
(60) 47°08.00′ N. lat., 124°59.83′ W. long.;
(61) 47°05.79′ N. lat., 125°01.00′ W. long.;
(62) 47°03.34′ N. lat., 124°57.49′ W. long.;
(63) 47°01.00′ N. lat., 125°00.00′ W. long.;
(64) 46°55.00′ N. lat., 125°02.00′ W. long.;
(65) 46°51.00′ N. lat., 124°57.00′ W. long.;
(66) 46°47.00′ N. lat., 124°55.00′ W. long.;
(67) 46°34.00′ N. lat., 124°38.00′ W. long.;
(68) 46°30.50′ N. lat., 124°41.00′ W. long.;
(69) 46°33.00′ N. lat., 124°32.00′ W. long.;
(70) 46°29.00′ N. lat., 124°32.00′ W. long.;
(71) 46°20.00′ N. lat., 124°39.00′ W. long.;
(72) 46°18.16′ N. lat., 124°40.00′ W. long.;
(73) 46°15.83′ N. lat., 124°27.01′ W. long.;
(74) 46°15.00′ N. lat., 124°30.96′ W. long.;
(75) 46°13.17′ N. lat., 124°37.87′ W. long.;
(76) 46°13.17′ N. lat., 124°38.75′ W. long.;
(77) 46°10.50′ N. lat., 124°42.00′ W. long.;
(78) 46°6.21′ N. lat., 124°41.85′ W. long.;
(79) 46°3.02′ N. lat., 124°50.27′ W. long.;
(80) 45°57.00′ N. lat., 124°45.52′ W. long.;
(81) 45°46.85′ N. lat., 124°45.91′ W. long.;
(82) 45°45.81′ N. lat., 124°47.05′ W. long.;
(83) 45°44.87′ N. lat., 124°45.98′ W. long.;
(84) 45°43.44′ N. lat., 124°46.03′ W. long.;
(85) 45°35.82′ N. lat., 124°45.72′ W. long.;
(86) 45°35.70′ N. lat., 124°42.89′ W. long.;
(87) 45°24.45′ N. lat., 124°38.21′ W. long.;
(88) 45°11.68′ N. lat., 124°39.38′ W. long.;
(89) 44°57.94′ N. lat., 124°37.02′ W. long.;
(90) 44°44.28′ N. lat., 124°50.79′ W. long.;
(91) 44°32.63′ N. lat., 124°54.21′ W. long.;
(92) 44°23.20′ N. lat., 124°49.87′ W. long.;
(93) 44°13.17′ N. lat., 124°58.81′ W. long.;
(94) 43°57.92′ N. lat., 124°58.29′ W. long.;
(95) 43°50.12′ N. lat., 124°53.36′ W. long.;
(96) 43°49.53′ N. lat., 124°43.96′ W. long.;
(97) 43°42.76′ N. lat., 124°41.40′ W. long.;
(98) 43°24.00′ N. lat., 124°42.61′ W. long.;
(99) 43°19.74′ N. lat., 124°45.12′ W. long.;
(100) 43°19.62′ N. lat., 124°52.95′ W. long.;
(101) 43°17.41′ N. lat., 124°53.02′ W. long.;
(102) 42°49.15′ N. lat., 124°54.93′ W. long.;
(103) 42°46.74′ N. lat., 124°53.39′ W. long.;
(104) 42°43.76′ N. lat., 124°51.64′ W. long.;
(105) 42°45.41′ N. lat., 124°49.35′ W. long.;
(106) 42°43.92′ N. lat., 124°45.92′ W. long.;
(107) 42°38.87′ N. lat., 124°43.38′ W. long.;
(108) 42°34.78′ N. lat., 124°46.56′ W. long.;
(109) 42°31.47′ N. lat., 124°46.89′ W. long.;
(110) 42°31.00′ N. lat., 124°44.28′ W. long.;
(111) 42°29.22′ N. lat., 124°46.93′ W. long.;
(112) 42°28.39′ N. lat., 124°49.94′ W. long.;
(113) 42°26.28′ N. lat., 124°47.60′ W. long.;
(114) 42°19.58′ N. lat., 124°43.21′ W. long.;
(115) 42°13.75′ N. lat., 124°40.06′ W. long.;
(116) 42°5.12′ N. lat., 124°39.06′ W. long.;
(117) 41°59.99′ N. lat., 124°37.72′ W. long.;
(118) 42°0.00′ N. lat., 124°37.76′ W. long.;
(119) 41°47.93′ N. lat., 124°31.79′ W. long.;
(120) 41°21.35′ N. lat., 124°30.35′ W. long.;
(121) 41°7.11′ N. lat., 124°25.25′ W. long.;
(122) 40°57.37′ N. lat., 124°30.25′ W. long.;
(123) 40°41.03′ N. lat., 124°33.21′ W. long.;
(124) 40°37.40′ N. lat., 124°38.96′ W. long.;
(125) 40°33.70′ N. lat., 124°42.50′ W. long.;
(126) 40°31.31′ N. lat., 124°41.59′ W. long.;
(127) 40°25.00′ N. lat., 124°36.65′ W. long.;
(128) 40°22.42′ N. lat., 124°32.19′ W. long.;
(129) 40°17.17′ N. lat., 124°32.21′ W. long.;
(130) 40°18.68′ N. lat., 124°50.44′ W. long.;
(131) 40°10.11′ N. lat., 124°28.25′ W. long.;
(132) 40°1.63′ N. lat., 124°17.25′ W. long.;
(133) 39°51.85′ N. lat., 124°10.33′ W. long.;
(134) 39°32.41′ N. lat., 124°0.01′ W. long.;
(135) 38°57.16′ N. lat., 124°1.89′ W. long.;
(136) 38°11.66′ N. lat., 123°30.87′ W. long.;
(137) 38°3.18′ N. lat., 123°33.45′ W. long.; and
(138) 38°00.00′ N. lat., 123°28.84′ W. long.
(v) The 250-fm (457-m) depth contour modified to allow fishing for petrale in winter months of January, February, November, and December and used north of 38° N. lat. as a western boundary for the trawl RCA is defined by straight lines connecting all of the following points in the order stated:
(1) 48°14.71′ N. lat., 125°41.95′ W. long.;
(2) 48°13.00′ N. lat., 125°39.00′ W. long.;
(3) 48°08.50′ N. lat., 125°45.00′ W. long.;
(4) 48°06.00′ N. lat., 125°46.50′ W. long.;
(5) 48°03.50′ N. lat., 125°37.00′ W. long.;
(6) 48°01.50′ N. lat., 125°40.00′ W. long.;
(7) 47°57.00′ N. lat., 125°37.00′ W. long.;
(8) 47°55.50′ N. lat., 125°28.50′ W. long.;
(9) 47°58.00′ N. lat., 125°25.00′ W. long.;
(10) 48°00.50′ N. lat., 125°24.50′ W. long.;
(11) 48°03.50′ N. lat., 125°21.00′ W. long.;
(12) 48°02.00′ N. lat., 125°19.50′ W. long.;
(13) 48°00.00′ N. lat., 125°21.00′ W. long.;
(14) 47°58.00′ N. lat., 125°20.00′ W. long.;
(15) 47°58.00′ N. lat., 125°18.00′ W. long.;
(16) 47°52.00′ N. lat., 125°16.50′ W. long.;
(17) 47°49.00′ N. lat., 125°11.00′ W. long.;
(18) 47°46.00′ N. lat., 125°06.00′ W. long.;
(19) 47°44.50′ N. lat., 125°07.50′ W. long.;
(20) 47°42.00′ N. lat., 125°06.00′ W. long.;
(21) 47°38.00′ N. lat., 125°07.00′ W. long.;
(22) 47°30.00′ N. lat., 125°00.00′ W. long.;
(23) 47°28.00′ N. lat., 124°58.50′ W. long.;
(24) 47°28.88′ N. lat., 124°54.71′ W. long.;
(25) 47°27.70′ N. lat., 124°51.87′ W. long.;
(26) 47°24.84′ N. lat., 124°48.45′ W. long.;
(27) 47°21.76′ N. lat., 124°47.42′ W. long.;
(28) 47°18.84′ N. lat., 124°46.75′ W. long.;
(29) 47°19.82′ N. lat., 124°51.43′ W. long.;
(30) 47°18.13′ N. lat., 124°54.25′ W. long.;
(31) 47°13.50′ N. lat., 124°54.69′ W. long.;
(32) 47°15.00′ N. lat., 125°00.00′ W. long.;
(33) 47°08.00′ N. lat., 124°59.82′ W. long.;
(34) 47°05.79′ N. lat., 125°01.00′ W. long.;
(35) 47°03.34′ N. lat., 124°57.49′ W. long.;
(36) 47°01.00′ N. lat., 125°00.00′ W. long.;
(37) 46°55.00′ N. lat., 125°02.00′ W. long.;
(38) 46°51.00′ N. lat., 124°57.00′ W. long.;
(39) 46°47.00′ N. lat., 124°55.00′ W. long.;
(40) 46°34.00′ N. lat., 124°38.00′ W. long.;
(41) 46°30.50′ N. lat., 124°41.00′ W. long.;
(42) 46°33.00′ N. lat., 124°32.00′ W. long.;
(43) 46°29.00′ N. lat., 124°32.00′ W. long.;
(44) 46°20.00′ N. lat., 124°39.00′ W. long.;
(45) 46°18.16′ N. lat., 124°40.00′ W. long.;
(46) 46°15.83′ N. lat., 124°27.01′ W. long.;
(47) 46°15.00′ N. lat., 124°30.96′ W. long.;
(48) 46°13.17′ N. lat., 124°38.76′ W. long.;
(49) 46°10.51′ N. lat., 124°41.99′ W. long.;
(50) 46°6.24′ N. lat., 124°41.81′ W. long.;
(51) 46°3.04′ N. lat., 124°50.26′ W. long.;
(52) 45°56.99′ N. lat., 124°45.45′ W. long.;
(53) 45°49.94′ N. lat., 124°45.75′ W. long.;
(54) 45°49.94′ N. lat., 124°42.33′ W. long.;
(55) 45°45.73′ N. lat., 124°42.18′ W. long.;
(56) 45°45.73′ N. lat., 124°43.82′ W. long.;
(57) 45°41.94′ N. lat., 124°43.61′ W. long.;
(58) 45°41.58′ N. lat., 124°39.86′ W. long.;
(59) 45°38.45′ N. lat., 124°39.94′ W. long.;
(60) 45°35.75′ N. lat., 124°42.91′ W. long.;
(61) 45°24.49′ N. lat., 124°38.20′ W. long.;
(62) 45°14.43′ N. lat., 124°39.05′ W. long.;
(63) 45°14.30′ N. lat., 124°34.19′ W. long.;
(64) 45°8.98′ N. lat., 124°34.26′ W. long.;
(65) 45°9.02′ N. lat., 124°38.81′ W. long.;
(66) 44°57.98′ N. lat., 124°36.98′ W. long.;
(67) 44°56.62′ N. lat., 124°38.32′ W. long.;
(68) 44°50.82′ N. lat., 124°35.52′ W. long.;
(69) 44°46.89′ N. lat., 124°38.32′ W. long.;
(70) 44°50.78′ N. lat., 124°44.24′ W. long.;
(71) 44°44.27′ N. lat., 124°50.78′ W. long.;
(72) 44°32.63′ N. lat., 124°54.24′ W. long.;
(73) 44°23.25′ N. lat., 124°49.78′ W. long.;
(74) 44°13.16′ N. lat., 124°58.81′ W. long.;
(75) 43°57.88′ N. lat., 124°58.25′ W. long.;
(76) 43°56.89′ N. lat., 124°57.33′ W. long.;
(77) 43°53.41′ N. lat., 124°51.95′ W. long.;
(78) 43°51.56′ N. lat., 124°47.38′ W. long.;
(79) 43°51.49′ N. lat., 124°37.77′ W. long.;
(80) 43°48.02′ N. lat., 124°43.31′ W. long.;
(81) 43°42.77′ N. lat., 124°41.39′ W. long.;
(82) 43°24.09′ N. lat., 124°42.57′ W. long.;
(83) 43°19.73′ N. lat., 124°45.09′ W. long.;
(84) 43°15.98′ N. lat., 124°47.76′ W. long.;
(85) 43°4.14′ N. lat., 124°52.55′ W. long.;
(86) 43°4.00′ N. lat., 124°53.88′ W. long.;
(87) 42°54.69′ N. lat., 124°54.54′ W. long.;
(88) 42°45.46′ N. lat., 124°49.37′ W. long.;
(89) 42°43.91′ N. lat., 124°45.90′ W. long.;
(90) 42°38.84′ N. lat., 124°43.36′ W. long.;
(91) 42°34.82′ N. lat., 124°46.56′ W. long.;
(92) 42°31.57′ N. lat., 124°46.86′ W. long.;
(93) 42°30.98′ N. lat., 124°44.27′ W. long.;
(94) 42°29.21′ N. lat., 124°46.93′ W. long.;
(95) 42°28.52′ N. lat., 124°49.40′ W. long.;
(96) 42°26.06′ N. lat., 124°46.61′ W. long.;
(97) 42°21.82′ N. lat., 124°43.76′ W. long.;
(98) 42°17.47′ N. lat., 124°38.89′ W. long.;
(99) 42°13.67′ N. lat., 124°37.51′ W. long.;
(100) 42°13.76′ N. lat., 124°40.03′ W. long.;
(101) 42°5.12′ N. lat., 124°39.06′ W. long.;
(102) 42°2.67′ N. lat., 124°38.41′ W. long.;
(103) 42°2.67′ N. lat., 124°35.95′ W. long.;
(104) 42°0.00′ N. lat., 124°35.88′ W. long.;
(105) 41°59.99′ N. lat., 124°35.92′ W. long.;
(106) 41°56.38′ N. lat., 124°34.96′ W. long.;
(107) 41°53.98′ N. lat., 124°32.50′ W. long.;
(108) 41°50.69′ N. lat., 124°30.46′ W. long.;
(109) 41°48.30′ N. lat., 124°29.91′ W. long.;
(110) 41°47.93′ N. lat., 124°31.79′ W. long.;
(111) 41°21.35′ N. lat., 124°30.35′ W. long.;
(112) 41°7.11′ N. lat., 124°25.25′ W. long.;
(113) 40°57.37′ N. lat., 124°30.25′ W. long.;
(114) 40°41.03′ N. lat., 124°33.21′ W. long.;
(115) 40°37.40′ N. lat., 124°38.96′ W. long.;
(116) 40°33.70′ N. lat., 124°42.50′ W. long.;
(117) 40°31.31′ N. lat., 124°41.59′ W. long.;
(118) 40°25.00′ N. lat., 124°36.65′ W. long.;
(119) 40°22.42′ N. lat., 124°32.19′ W. long.;
(120) 40°17.17′ N. lat., 124°32.21′ W. long.;
(121) 40°18.68′ N. lat., 124°50.44′ W. long.;
(122) 40°10.11′ N. lat., 124°28.25′ W. long.;
(123) 40°1.63′ N. lat., 124°17.25′ W. long.;
(124) 39°51.85′ N. lat., 124°10.33′ W. long.;
(125) 39°32.41′ N. lat., 124°0.01′ W. long.;
(126) 38°57.16′ N. lat., 124°1.89′ W. long.;
(127) 38°11.66′ N. lat., 123°30.87′ W. long.;
(128) 38°3.18′ N. lat., 123°33.45′ W. long.; and
(129) 38°00.00′ N. lat., 123°28.84′ W. long.
(vi) The 50-fm (91-m) depth contour used between 40°10′ N. lat. and 34°27′ N. lat. as an eastern boundary for the trawl RCA in the months of January and February is defined by straight lines connecting all of the following points in the order stated:
(1) 40°10.01′ N. lat., 124°19.97′ W. long.;
(2) 40°9.20′ N. lat., 124°15.81′ W. long.;
(3) 40°7.51′ N. lat., 124°15.29′ W. long.;
(4) 40°5.22′ N. lat., 124°10.06′ W. long.;
(5) 40°6.51′ N. lat., 124°8.01′ W. long.;
(6) 40°0.72′ N. lat., 124°8.45′ W. long.;
(7) 39°56.60′ N. lat., 124°7.12′ W. long.;
(8) 39°52.58′ N. lat., 124°3.57′ W. long.;
(9) 39°50.65′ N. lat., 123°57.98′ W. long.;
(10) 39°40.16′ N. lat., 123°52.41′ W. long.;
(11) 39°30.12′ N. lat., 123°52.92′ W. long.;
(12) 39°24.53′ N. lat., 123°55.16′ W. long.;
(13) 39°11.58′ N. lat., 123°50.93′ W. long.;
(14) 38°55.13′ N. lat., 123°51.14′ W. long.;
(15) 38°28.58′ N. lat., 123°22.84′ W. long.;
(16) 38°14.58′ N. lat., 123°9.93′ W. long.;
(17) 38°1.86′ N. lat., 123°9.76′ W. long.;
(18) 37°53.66′ N. lat., 123°12.06′ W. long.;
(19) 37°48.01′ N. lat., 123°15.84′ W. long.;
(20) 37°36.77′ N. lat., 122°58.48′ W. long.;
(21) 37°1.02′ N. lat., 122°33.71′ W. long.;
(22) 37°2.28′ N. lat., 122°25.06′ W. long.;
(23) 36°48.20′ N. lat., 122°3.28′ W. long.;
(24) 36°51.46′ N. lat., 121°57.54′ W. long.;
(25) 36°44.14′ N. lat., 121°58.10′ W. long.;
(26) 36°36.76′ N. lat., 122°1.16′ W. long.;
(27) 36°15.62′ N. lat., 121°57.13′ W. long.;
(28) 36°10.60′ N. lat., 121°43.65′ W. long.;
(29) 35°40.38′ N. lat., 121°22.59′ W. long.;
(30) 35°24.35′ N. lat., 121°2.53′ W. long.;
(31) 35°2.66′ N. lat., 120°51.63′ W. long.;
(32) 34°39.52′ N. lat., 120°48.72′ W. long.;
(33) 34°31.26′ N. lat., 120°44.12′ W. long.; and
(34) 34°27.00′ N. lat., 120°31.25′ W. long.
(vii) The 60-fm (110-m) depth contour used between 40°10′ N. lat. and 34°27′ N. lat. as an eastern boundary for the trawl RCA in March through October is defined by straight lines connecting all of the following points in the order stated:
(1) 40°10.01′ N. lat., 124°19.97′ W. long.;
(2) 40°9.20′ N. lat., 124°15.81′ W. long.;
(3) 40°7.51′ N. lat., 124°15.29′ W. long.;
(4) 40°5.22′ N. lat., 124°10.06′ W. long.;
(5) 40°6.51′ N. lat., 124°8.01′ W. long.;
(6) 40°0.72′ N. lat., 124°8.45′ W. long.;
(7) 39°56.60′ N. lat., 124°7.12′ W. long.;
(8) 39°52.58′ N. lat., 124°3.57′ W. long.;
(9) 39°50.65′ N. lat., 123°57.98′ W. long.;
(10) 39°40.16′ N. lat., 123°52.41′ W. long.;
(11) 39°30.12′ N. lat., 123°52.92′ W. long.;
(12) 39°24.53′ N. lat., 123°55.16′ W. long.;
(13) 39°11.58′ N. lat., 123°50.93′ W. long.;
(14) 38°55.13′ N. lat., 123°51.14′ W. long.;
(15) 38°28.58′ N. lat., 123°22.84′ W. long.;
(16) 38°8.32′ N. lat., 123°14.60′ W. long.;
(17) 38°0.27′ N. lat., 123°15.29′ W. long.;
(18) 37°56.93′ N. lat., 123°21.61′ W. long.;
(19) 37°48.01′ N. lat., 123°15.84′ W. long.;
(20) 37°36.77′ N. lat., 122°58.48′ W. long.;
(21) 37°1.02′ N. lat., 122°33.71′ W. long.;
(22) 37°2.28′ N. lat., 122°25.06′ W. long.;
(23) 36°48.20′ N. lat., 122°3.28′ W. long.;
(24) 36°51.46′ N. lat., 121°57.54′ W. long.;
(25) 36°44.14′ N. lat., 121°58.10′ W. long.;
(26) 36°36.76′ N. lat., 122°1.16′ W. long.;
(27) 36°15.62′ N. lat., 121°57.13′ W. long.;
(28) 36°10.60′ N. lat., 121°43.65′ W. long.;
(29) 35°40.38′ N. lat., 121°22.59′ W. long.;
(30) 35°24.35′ N. lat., 121°2.53′ W. long.;
(31) 35°2.66′ N. lat., 120°51.63′ W. long.;
(32) 34°39.52′ N. lat., 120°48.72′ W. long.;
(33) 34°31.26′ N. lat., 120°44.12′ W. long.; and
(34) 34°27.00′ N. lat., 120°31.25′ W. long.
(viii) The 100-fm (183-m) depth contour used between 34°27′ N. lat. and the U.S. border with Mexico as an eastern boundary for the trawl RCA is defined by straight lines connecting all of the following points in the order stated:
(1) 34°27.00′ N. lat., 120°31.74′ W. long.;
(2) 34°21.90′ N. lat., 120°25.25′ W. long.;
(3) 34°24.86′ N. lat., 120°16.81′ W. long.;
(4) 34°22.80′ N. lat., 119°57.06′ W. long.;
(5) 34°18.59′ N. lat., 119°44.84′ W. long.;
(6) 34°15.04′ N. lat., 119°40.34′ W. long.;
(7) 34°14.40′ N. lat., 119°45.39′ W. long.;
(8) 34°12.32′ N. lat., 119°42.41′ W. long.;
(9) 34°9.71′ N. lat., 119°28.85′ W. long.;
(10) 34°4.70′ N. lat., 119°15.38′ W. long.;
(11) 34°3.33′ N. lat., 119°12.93′ W. long.;
(12) 34°2.72′ N. lat., 119°7.01′ W. long.;
(13) 34°3.90′ N. lat., 119°4.64′ W. long.;
(14) 34°1.80′ N. lat., 119°3.23′ W. long.;
(15) 33°59.32′ N. lat., 119°3.50′ W. long.;
(16) 33°59.00′ N. lat., 118°59.55′ W. long.;
(17) 33°59.51′ N. lat., 118°57.25′ W. long.;
(18) 33°58.82′ N. lat., 118°52.47′ W. long.;
(19) 33°58.54′ N. lat., 118°41.86′ W. long.;
(20) 33°55.07′ N. lat., 118°34.25′ W. long.;
(21) 33°54.28′ N. lat., 118°38.68′ W. long.;
(22) 33°51.00′ N. lat., 118°36.66′ W. long.;
(23) 33°39.77′ N. lat., 118°18.41′ W. long.;
(24) 33°35.50′ N. lat., 118°16.85′ W. long.;
(25) 33°32.68′ N. lat., 118°9.82′ W. long.;
(26) 33°34.09′ N. lat., 117°54.06′ W. long.;
(27) 33°31.60′ N. lat., 117°49.28′ W. long.;
(28) 33°16.07′ N. lat., 117°34.74′ W. long.;
(29) 33°7.06′ N. lat., 117°22.71′ W. long.;
(30) 32°53.34′ N. lat., 117°19.13′ W. long.;
(31) 32°46.39′ N. lat., 117°23.45′ W. long.;
(32) 32°42.79′ N. lat., 117°21.16′ W. long.; and
(33) 32°34.22′ N. lat., 117°21.20′ W. long.
(ix) The 150-fm (274-m) depth contour used between 38° N. lat. and the U.S. border with Mexico as a western boundary for both the trawl RCA and the non-trawl RCA is defined by straight lines connecting all of the following points in the order stated:
(1) 37°59.73′ N. lat., 123°29.85′ W. long.;
(2) 37°51.46′ N. lat., 123°25.16′ W. long.;
(3) 37°44.06′ N. lat., 123°11.44′ W. long.;
(4) 37°35.26′ N. lat., 123°2.29′ W. long.;
(5) 37°14.00′ N. lat., 122°50.00′ W. long.;
(6) 37°1.00′ N. lat., 122°36.00′ W. long.;
(7) 36°58.07′ N. lat., 122°28.35′ W. long.;
(8) 37°0.71′ N. lat., 122°24.53′ W. long.;
(9) 36°57.50′ N. lat., 122°24.98′ W. long.;
(10) 36°58.38′ N. lat., 122°21.85′ W. long.;
(11) 36°55.85′ N. lat., 122°21.95′ W. long.;
(12) 36°52.86′ N. lat., 122°12.89′ W. long.;
(13) 36°48.71′ N. lat., 122°9.28′ W. long.;
(14) 36°46.65′ N. lat., 122°4.10′ W. long.;
(15) 36°51.00′ N. lat., 121°58.00′ W. long.;
(16) 36°44.00′ N. lat., 121°59.00′ W. long.;
(17) 36°38.00′ N. lat., 122°2.00′ W. long.;
(18) 36°26.00′ N. lat., 121°59.05′ W. long.;
(19) 36°22.00′ N. lat., 122°1.00′ W. long.;
(20) 36°19.00′ N. lat., 122°5.00′ W. long.;
(21) 36°14.00′ N. lat., 121°58.00′ W. long.;
(22) 36°10.61′ N. lat., 121°44.51′ W. long.;
(23) 35°50.53′ N. lat., 121°29.93′ W. long.;
(24) 35°46.00′ N. lat., 121°28.00′ W. long.;
(25) 35°38.94′ N. lat., 121°23.16′ W. long.;
(26) 35°26.00′ N. lat., 121°8.00′ W. long.;
(27) 35°7.42′ N. lat., 120°57.08′ W. long.;
(28) 34°42.00′ N. lat., 120°54.00′ W. long.;
(29) 34°29.00′ N. lat., 120°44.00′ W. long.;
(30) 34°22.00′ N. lat., 120°32.00′ W. long.;
(31) 34°21.00′ N. lat., 120°21.00′ W. long.;
(32) 34°24.00′ N. lat., 120°15.00′ W. long.;
(33) 34°22.11′ N. lat., 119°56.63′ W. long.;
(34) 34°19.00′ N. lat., 119°48.00′ W. long.;
(35) 34°15.00′ N. lat., 119°48.00′ W. long.;
(36) 34°8.00′ N. lat., 119°37.00′ W. long.;
(37) 34°7.00′ N. lat., 120°11.00′ W. long.;
(38) 34°13.00′ N. lat., 120°30.00′ W. long.;
(39) 34°9.00′ N. lat., 120°38.00′ W. long.;
(40) 33°58.00′ N. lat., 120°29.00′ W. long.;
(41) 33°51.00′ N. lat., 120°9.00′ W. long.;
(42) 33°38.00′ N. lat., 119°58.00′ W. long.;
(43) 33°38.00′ N. lat., 119°50.00′ W. long.;
(44) 33°46.25′ N. lat., 119°49.32′ W. long.;
(45) 33°53.82′ N. lat., 119°53.42′ W. long.;
(46) 33°59.00′ N. lat., 119°21.00′ W. long.;
(47) 34°2.00′ N. lat., 119°13.00′ W. long.;
(48) 34°1.52′ N. lat., 119°4.50′ W. long.;
(49) 33°58.83′ N. lat., 119°3.76′ W. long.;
(50) 33°56.55′ N. lat., 118°40.50′ W. long.;
(51) 33°51.00′ N. lat., 118°38.00′ W. long.;
(52) 33°39.63′ N. lat., 118°18.75′ W. long.;
(53) 33°35.44′ N. lat., 118°17.57′ W. long.;
(54) 33°31.98′ N. lat., 118°12.59′ W. long.;
(55) 33°33.25′ N. lat., 117°54.15′ W. long.;
(56) 33°31.43′ N. lat., 117°49.84′ W. long.;
(57) 33°16.53′ N. lat., 117°36.13′ W. long.;
(58) 33°6.51′ N. lat., 117°24.11′ W. long.;
(59) 32°54.11′ N. lat., 117°21.45′ W. long.;
(60) 32°46.15′ N. lat., 117°24.26′ W. long.;
(61) 32°41.97′ N. lat., 117°22.10′ W. long.;
(62) 32°39.00′ N. lat., 117°28.13′ W. long.; and
(63) 32°34.84′ N. lat., 117°24.62′ W. long.
(x) The 150-fm (274-m) depth contour used around islands/seamounts off the state of California is defined by straight lines around each island/seamount connecting all of the following points in the order stated:
(A) San Nicholas Island
(1) 33°32.73′ N. lat., 119°47.00′ W. long.;
(2) 33°14.00′ N. lat., 119°15.00′ W. long.;
(3) 33°12.00′ N. lat., 119°18.00′ W. long.;
(4) 33°11.00′ N. lat., 119°26.00′ W. long.;
(5) 33°13.13′ N. lat., 119°43.19′ W. long.;
(6) 33°13.11′ N. lat., 119°53.05′ W. long.;
(7) 33°30.00′ N. lat., 119°52.00′ W. long.; and
(8) 33°32.73′ N. lat., 119°47.00′ W. long.
(B) Santa Catalina Island
(1) 33°19.00′ N. lat., 118°15.00′ W. long.;
(2) 33°26.00′ N. lat., 118°22.00′ W. long.;
(3) 33°28.00′ N. lat., 118°28.00′ W. long.;
(4) 33°30.00′ N. lat., 118°31.00′ W. long.;
(5) 33°31.00′ N. lat., 118°37.00′ W. long.;
(6) 33°29.00′ N. lat., 118°41.00′ W. long.;
(7) 33°23.00′ N. lat., 118°31.00′ W. long.;
(8) 33°21.00′ N. lat., 118°33.00′ W. long.;
(9) 33°18.00′ N. lat., 118°28.00′ W. long.;
(10) 33°16.00′ N. lat., 118°13.00′ W. long.; and
(11) 33°19.00′ N. lat., 118°15.00′ W. long.
(C) San Clemente Island
(1) 32°48.50′ N. lat., 118°18.34′ W. long.;
(2) 32°56.00′ N. lat., 118°29.00′ W. long.;
(3) 33°3.00′ N. lat., 118°34.00′ W. long.;
(4) 33°5.00′ N. lat., 118°38.00′ W. long.;
(5) 33°3.00′ N. lat., 118°40.00′ W. long.;
(6) 32°48.00′ N. lat., 118°31.00′ W. long.;
(7) 32°43.00′ N. lat., 118°24.00′ W. long.; and
(8) 32°48.50′ N. lat., 118°18.34′ W. long.
(D) Santa Barbara Island
(1) 33°36.06′ N. lat., 118°57.15′ W. long.;
(2) 33°20.64′ N. lat., 118°59.39′ W. long.;
(3) 33°23.00′ N. lat., 119°7.00′ W. long.;
(4) 33°43.00′ N. lat., 119°14.00′ W. long.;
(5) 33°46.00′ N. lat., 119°12.00′ W. long.; and
(6) 33°36.06′ N. lat., 118°57.15′ W. long.
(E) Orange County Seamount
(1) 33°25.00′ N. lat., 118°1.00′ W. long.;
(2) 33°25.00′ N. lat., 117°58.00′ W. long.;
(3) 33°23.00′ N. lat., 117°58.00′ W. long.;
(4) 33°23.00′ N. lat., 118°1.00′ W. long.; and
(5) 33°25.00′ N. lat., 118°1.00′ W. long.
(xi) The 50-fm (91-m) depth contour off Oregon state, which may be used for inseason management in 2003 is defined by straight lines connecting all of the following points in the order stated:
(1) 46°16.00′ N. lat., 124°17.33′ W. long.;
(2) 45°50.88′ N. lat., 124°9.68′ W. long.;
(3) 45°12.99′ N. lat., 124°6.71′ W. long.;
(4) 44°52.48′ N. lat., 124°11.22′ W. long.;
(5) 44°42.41′ N. lat., 124°19.70′ W. long.;
(6) 44°38.80′ N. lat., 124°26.58′ W. long.;
(7) 44°24.99′ N. lat., 124°31.22′ W. long.;
(8) 44°18.11′ N. lat., 124°43.74′ W. long.;
(9) 44°15.23′ N. lat., 124°40.47′ W. long.;
(10) 44°18.80′ N. lat., 124°35.48′ W. long.;
(11) 44°19.62′ N. lat., 124°27.18′ W. long.;
(12) 43°56.65′ N. lat., 124°16.86′ W. long.;
(13) 43°34.95′ N. lat., 124°17.47′ W. long.;
(14) 43°12.60′ N. lat., 124°35.80′ W. long.;
(15) 43°8.96′ N. lat., 124°33.77′ W. long.;
(16) 42°59.66′ N. lat., 124°34.79′ W. long.;
(17) 42°54.29′ N. lat., 124°39.46′ W. long.;
(18) 42°46.50′ N. lat., 124°39.99′ W. long.;
(19) 42°41.00′ N. lat., 124°34.92′ W. long.;
(20) 42°36.29′ N. lat., 124°34.70′ W. long.;
(21) 42°28.36′ N. lat., 124°37.90′ W. long.;
(22) 42°25.53′ N. lat., 124°37.68′ W. long.;
(23) 42°18.64′ N. lat., 124°29.47′ W. long.;
(24) 42°12.95′ N. lat., 124°27.34′ W. long.;
(25) 42°3.04′ N. lat., 124°25.81′ W. long.; and
(26) 42°0.00′ N. lat., 124°26.21′ W. long.
(xii) The 150-fm (274-m) depth contour between 46°16′ N. lat. and 38° N. lat., which may be used for inseason management in 2003 is defined by straight lines connecting all of the following points in the order stated:
(1) 46°16.00′ N. lat., 124°26.15′ W. long.;
(2) 46°13.38′ N. lat., 124°31.36′ W. long.;
(3) 46°12.09′ N. lat., 124°38.39′ W. long.;
(4) 46°9.46′ N. lat., 124°40.64′ W. long.;
(5) 46°7.30′ N. lat., 124°40.68′ W. long.;
(6) 46°2.76′ N. lat., 124°44.01′ W. long.;
(7) 46°2.64′ N. lat., 124°47.96′ W. long.;
(8) 46°1.22′ N. lat., 124°43.47′ W. long.;
(9) 45°51.81′ N. lat., 124°42.89′ W. long.;
(10) 45°45.95′ N. lat., 124°40.72′ W. long.;
(11) 45°44.11′ N. lat., 124°43.09′ W. long.;
(12) 45°34.50′ N. lat., 124°30.27′ W. long.;
(13) 45°21.10′ N. lat., 124°23.11′ W. long.;
(14) 45°9.69′ N. lat., 124°20.45′ W. long.;
(15) 44°56.25′ N. lat., 124°27.03′ W. long.;
(16) 44°44.47′ N. lat., 124°37.85′ W. long.;
(17) 44°31.81′ N. lat., 124°39.60′ W. long.;
(18) 44°31.48′ N. lat., 124°43.30′ W. long.;
(19) 44°19.70′ N. lat., 124°50.88′ W. long.;
(20) 44°12.04′ N. lat., 124°58.16′ W. long.;
(21) 44°7.38′ N. lat., 124°57.87′ W. long.;
(22) 43°57.06′ N. lat., 124°57.20′ W. long.;
(23) 43°52.52′ N. lat., 124°49.00′ W. long.;
(24) 43°51.56′ N. lat., 124°37.49′ W. long.;
(25) 43°47.83′ N. lat., 124°36.43′ W. long.;
(26) 43°31.79′ N. lat., 124°36.80′ W. long.;
(27) 43°30.78′ N. lat., 124°38.19′ W. long.;
(28) 43°29.34′ N. lat., 124°36.77′ W. long.;
(29) 43°26.46′ N. lat., 124°40.02′ W. long.;
(30) 43°16.15′ N. lat., 124°44.37′ W. long.;
(31) 43°9.33′ N. lat., 124°45.35′ W. long.;
(32) 43°8.85′ N. lat., 124°48.92′ W. long.;
(33) 43°3.23′ N. lat., 124°52.41′ W. long.;
(34) 43°0.25′ N. lat., 124°51.93′ W. long.;
(35) 42°56.62′ N. lat., 124°53.93′ W. long.;
(36) 42°54.84′ N. lat., 124°54.01′ W. long.;
(37) 42°52.31′ N. lat., 124°50.76′ W. long.;
(38) 42°47.78′ N. lat., 124°47.27′ W. long.;
(39) 42°46.32′ N. lat., 124°43.59′ W. long.;
(40) 42°41.63′ N. lat., 124°44.07′ W. long.;
(41) 42°38.83′ N. lat., 124°42.77′ W. long.;
(42) 42°35.37′ N. lat., 124°43.22′ W. long.;
(43) 42°32.78′ N. lat., 124°44.68′ W. long.;
(44) 42°32.19′ N. lat., 124°42.40′ W. long.;
(45) 42°30.28′ N. lat., 124°44.30′ W. long.;
(46) 42°28.16′ N. lat., 124°48.38′ W. long.;
(47) 42°18.34′ N. lat., 124°38.77′ W. long.;
(48) 42°13.65′ N. lat., 124°36.82′ W. long.;
(49) 42°0.15′ N. lat., 124°35.81′ W. long.;
(50) 41°47.79′ N. lat., 124°29.52′ W. long.;
(51) 41°21.00′ N. lat., 124°29.00′ W. long.;
(52) 41°11.00′ N. lat., 124°23.00′ W. long.;
(53) 41°5.00′ N. lat., 124°23.00′ W. long.;
(54) 40°54.00′ N. lat., 124°26.00′ W. long.;
(55) 40°50.00′ N. lat., 124°26.00′ W. long.;
(56) 40°44.51′ N. lat., 124°30.83′ W. long.;
(57) 40°40.61′ N. lat., 124°32.06′ W. long.;
(58) 40°37.36′ N. lat., 124°29.41′ W. long.;
(59) 40°35.64′ N. lat., 124°30.47′ W. long.;
(60) 40°37.43′ N. lat., 124°37.10′ W. long.;
(61) 40°36.00′ N. lat., 124°40.00′ W. long.;
(62) 40°31.59′ N. lat., 124°40.72′ W. long.;
(63) 40°24.64′ N. lat., 124°35.62′ W. long.;
(64) 40°23.00′ N. lat., 124°32.00′ W. long.;
(65) 40°23.39′ N. lat., 124°28.70′ W. long.;
(66) 40°22.28′ N. lat., 124°25.25′ W. long.;
(67) 40°21.90′ N. lat., 124°25.17′ W. long.;
(68) 40°22.00′ N. lat., 124°28.00′ W. long.;
(69) 40°21.35′ N. lat., 124°29.53′ W. long.;
(70) 40°19.75′ N. lat., 124°28.98′ W. long.;
(71) 40°18.15′ N. lat., 124°27.01′ W. long.;
(72) 40°17.45′ N. lat., 124°25.49′ W. long.;
(73) 40°18.00′ N. lat., 124°24.00′ W. long.;
(74) 40°16.00′ N. lat., 124°26.00′ W. long.;
(75) 40°17.00′ N. lat., 124°35.00′ W. long.;
(76) 40°16.00′ N. lat., 124°36.00′ W. long.;
(77) 40°10.07′ N. lat., 124°22.90′ W. long.;
(78) 40°7.00′ N. lat., 124°19.00′ W. long.;
(79) 40°8.10′ N. lat., 124°16.70′ W. long.;
(80) 40°5.90′ N. lat., 124°17.77′ W. long.;
(81) 40°1.46′ N. lat., 124°12.85′ W. long.;
(82) 40°4.32′ N. lat., 124°10.33′ W. long.;
(83) 40°3.21′ N. lat., 124°8.83′ W. long.;
(84) 40°1.33′ N. lat., 124°8.70′ W. long.;
(85) 39°58.51′ N. lat., 124°12.44′ W. long.; and
(86) 38°00.00′ N. lat., 124°7.49′ W. long.
(20) Rockfish categories. Rockfish (except thornyheads) are divided into categories north and south of 40°10′ N. lat., depending on the depth where they most often are caught: nearshore, shelf, or slope (scientific names appear in Table 2). Nearshore rockfish are further divided into shallow nearshore and deeper nearshore categories south of 40°10′ N. lat. Trip limits are established for “minor rockfish” species according to these categories (see Tables 2-5).
(a) Nearshore rockfish consists entirely of the minor nearshore rockfish species listed in Table 2, which includes California scorpionfish.
(i) Shallow nearshore rockfish consists of black-and-yellow rockfish, China rockfish, gopher rockfish, grass rockfish, and kelp rockfish.
(ii) Deeper nearshore rockfish consists of black rockfish, blue rockfish, brown rockfish, calico rockfish, copper rockfish, olive rockfish, quillback rockfish, and treefish.
(iii) California scorpionfish.
(b) Shelf rockfish consists of canary rockfish, shortbelly rockfish, widow rockfish, yelloweye rockfish, yellowtail rockfish, bocaccio, chilipepper, cowcod, and the minor shelf rockfish species listed in Table 2.
(c) Slope rockfish consists of Pacific ocean perch, splitnose rockfish, darkblotched rockfish, and the minor slope rockfish species listed in Table 2.
(1)
A header in Table 3 (North), Table 3 (South), Table 4 (North), and Table 5 (South) approximates the Rockfish Conservation Area (i.e., closed area) for vessels participating in the limited entry fishery. [Note: Between a line drawn due south from
Point Fermin (33° 42′ 30″ N. lat.; 118° 17′ 30″ W. long.) and a line drawn due west from the Newport South Jetty (33° 35′ 37″ N. lat.; 117° 52′ 50″ W. long.,) vessels fishing with hook-and-line and/or trap (or pot) gear may operate from shore to a boundary line approximating 50 fm (91 m).]
Management measures may be changed during the year by announcement in the
(2)
(a)
(b)
(i)
(ii)
(iii)
(3)
(a)
(i) Catcher/processor sector—41,288 mt (34 percent);
(ii) Mothership sector—29,080 mt (24 percent);
(iii) Shore-based sector—50,904 mt (42 percent). No more than 5 percent (2,545 mt) of the shore-based whiting allocation may be taken before the shore-based fishery begins north of 42° N. lat. on June 15, 2003.
(iv) Tribal allocation—See paragraph V.
(b)
(i) Catcher/processor sector—May 15;
(ii) Mothership sector—May 15;
(iii) Shore-based sector—June 15 north of 42° N. lat.; April 1 between 42°-40°30′ N. lat.; April 15 south of 40°30′ N. lat.
(c)
(ii) Inside the Eureka 100 fm (183 m) contour. No more than 10,000 lb (4,536 kg) of whiting may be taken and retained, possessed, or landed by a vessel that, at any time during a fishing trip, fished in the fishery management area shoreward of the 100 fathom (183 m) contour (as shown on NOAA Charts 18580, 18600, and 18620) in the Eureka area.
(4)
(1)
(2) Groundfish taken with exempted trawl gear by vessels engaged in fishing for spot and ridgeback prawns, California halibut, or sea cucumbers. [Note: The States of California and Washington will likely prohibit trawling for spot prawn beginning in 2003, while the State of Oregon will likely begin phasing out trawling for spot prawn in 2003.] Trip limits and RCAs for groundfish retained in the spot and ridgeback prawn, California halibut, or sea cucumber fisheries are in Table 5 (North) and Table 5 (South). (a) State law. The trip limits in Table 5(North) and Table 5(South) are not intended to supersede any more restrictive State law relating to the retention of groundfish taken in shrimp or prawn pots or traps.
(b)
(i) It is not fishing under a valid limited entry permit issued under 50 CFR 660.333 for trawl gear;
(ii) All fishing on the trip takes place south of Pt. Arena, CA; and
(iii) The landing includes California halibut of a size required by California Fish and Game Code section 8392(a), which states: “No California halibut may be taken, possessed or sold which measures less than 22 in (56 cm) in total length, unless it weighs 4 lbs (1.8144 kg) or more in the round, 3 and one-half lbs (1.587 kg) or more dressed with the head on, or 3 lbs (1.3608 kg) or more dressed with the head off. Total length means “the shortest distance between the tip of the jaw or snout, whichever extends farthest while the mouth is closed, and the tip of the longest lobe of the tail, measured while the halibut is lying flat in natural repose, without resort to any force other than the swinging or fanning of the tail.”
(c)
(i) It is not fishing under a valid limited entry permit issued under 50 CFR 660.333 for trawl gear;
(ii) All fishing on the trip takes place south of Pt. Arena, CA; and
(iii) The landing includes sea cucumbers taken in accordance with California Fish and Game Code, section 8405, which requires a permit issued by the State of California.
(3) Groundfish taken with exempted trawl gear by vessels engaged in fishing for pink shrimp. Trip limits for groundfish retained in the pink shrimp fishery are in Table 5 (North) and Table 5 (South). Notwithstanding section IV.A.(11), a vessel that takes and retains pink shrimp and also takes and retains groundfish in either the limited entry or another open access fishery during the same applicable cumulative limit period that it takes and retains pink shrimp (which may be 1 month or 2 months, depending on the fishery and the time of year), may retain the larger of the two limits, but only if the limit(s) for each gear or fishery are not exceeded when operating in that fishery or with that gear. The limits are not additive; the vessel may not retain a separate trip limit for each fishery.
Federal recreational groundfish regulations are not intended to supersede any more restrictive State recreational groundfish regulations relating to federally-managed groundfish.
(1)
(a)
(b)
(c)
(2)
(3)
(a) North of 40°10′ N. lat. North of 40°10′ N. lat. to the California/Oregon border, California's recreational groundfish fishery will generally conform with Oregon's recreational regulations (see IV.D.(2)). For each person engaged in recreational fishing seaward of California north of 40°10′ N. lat., the following seasons, bag limits, and size limits apply:
(i)
(A)
(B)
(C)
(D)
(ii)
(A)
(B)
(C)
(D)
(b) South of 40°10′ N. lat. For each person engaged in recreational fishing seaward of California south of 40°10′ N. lat., the following seasons, bag limits, size limits and closed areas apply:
(i)
(A)
(B) South of 40°10′ N. lat., recreational fishing for all groundfish, including lingcod, is prohibited seaward of the 20-fm (37-m) depth contour, except that recreational fishing for sanddabs is permitted seaward of the 20-fm (37-m) depth contour subject to the provisions in paragraph IV.D.(3)(iv).
(ii)
(A)
(B)
(C)
(B)
(iii)
(A)
(B)
(C)
(D)
(iv)
(B)
(C)
(D)
(iv)
In 1994, the United States formally recognized that the four Washington coastal treaty Indian tribes (Makah, Quileute, Hoh, and Quinault) have treaty rights to fish for groundfish in the Pacific Ocean, and concluded that, in
A tribal allocation is subtracted from the species OY before limited entry and open access allocations are derived. The tribal fisheries for sablefish, black rockfish, and whiting are separate fisheries, and are not governed by the limited entry or open access regulations or allocations. The tribes regulate these fisheries so as not to exceed their allocations.
The tribal allocation for black rockfish is the same in 2003 as in 2002. Also similar to 2002, the tribal sablefish allocation is 10 percent of the total catch OY (650 mt), less 3 percent for estimated discard mortality, or 631 mt.
In 1999 through 2002, the tribal whiting allocation has been based on a methodology originally proposed by the Makah Tribe in 1998. The methodology is an abundance-based sliding scale that determines the tribal allocation based on the level of the overall U.S. OY, up to a maximum 17.5 percent tribal harvest ceiling at OY levels below 145,000 mt. The tribes have proposed using the same methodology in 2003. In 2003, applying the sliding scale methodology to a 148,200-mt overall OY results in a 25,000-mt tribal whiting allocation, which will be taken by the Makah Tribe. No other tribes have proposed to harvest whiting in 2003.
The sliding scale methodology used to determine the treaty Indian share of Pacific whiting is the subject of ongoing litigation. In United States v. Washington, Subproceeding 96-2, the Court held that the methodology is consistent with the Magnuson-Stevens Act, and is the best available scientific method to determine the appropriate allocation of whiting to the tribes. United States v. Washington, 143 F.Supp.2d 1218 (W.D. Wash. 2001). This ruling was reaffirmed in July 2002. Midwater Trawlers Cooperative v. Daley, C96-1808R (W.D. Wash.) (Order Granting Defendants' Motion to Supplement Record, July 17, 2002). Additional briefing will occur in this case. However, at this time NMFS remains under a Court Order in Subproceeding 96-2 to continue use of the methodology unless the Secretary finds just cause for its alteration or abandonment, the parties agree to a permissible alternative, or further order issues from the Court. Therefore NMFS is obliged to continue to use the methodology unless one of the events identified by the Court occurs. Since NMFS finds no reason to change the methodology, it has been used to determine the 2003 tribal allocation.
For some species on which the tribes have a modest harvest, no specific allocation has been determined. Rather than try to reserve specific allocations for the tribes, NMFS is establishing trip limits recommended by the tribes and the Council to accommodate modest tribal fisheries. For lingcod, all tribal fisheries are restricted to 300 lb (136 kg) per day and 900 lb (408 kg) per week cumulative limits. Tribal fisheries are expected to take about 5.2 mt of lingcod in 2003. For rockfish species, the 2003 tribal longline and trawl fisheries will operate under trip and cumulative limits. Tribal fisheries will operate under a 300-lb (136-kg) per trip limit each for canary rockfish, thornyheads, and the minor rockfish species groups (nearshore, shelf, and slope), and under a 100-lb (45-kg) trip limit for yelloweye rockfish. A 300-lb (136 kg) canary rockfish trip limit is expected to result in landings of 2.3 mt in 2003. A 300-lb (136-kg) thornyheads trip limit is expected to result in landings of 2.7 mt in 2003. Other rockfish limits are expected to result in the following landings levels: widow rockfish, 45 mt; yelloweye rockfish, 3.1 mt; yellowtail rockfish, 400 mt; minor nearshore rockfish, 2 mt; minor shelf rockfish excluding yelloweye, 4.5 mt; minor slope rockfish, 4 mt. Trace amounts (1 mt) of POP and darkblotched rockfish may also be landed in tribal commercial fisheries.
The Assistant Administrator (AA) announces the following tribal allocations for 2003, including those that are the same as in 2002. Trip limits for certain species were recommended by the tribes and the Council and are specified here with the tribal allocations.
A. Sablefish
The tribal allocation is 631 mt, 10 percent of the total catch OY, less 3 percent estimated discard mortality.
(1) For the commercial harvest of black rockfish off Washington State, a harvest guideline of: 20,000 lb (9,072 kg) north of Cape Alava, WA (48°09′30″ N. lat.) and 10,000 lb (4,536 kg) between Destruction Island, WA (47°40′00″ N. lat.) and Leadbetter Point, WA (46°38′10″ N. lat.).
(2) Thornyheads are subject to a 300-lb (136-kg) trip limit.
(3) Canary rockfish are subject to a 300-lb (136-kg) trip limit.
(4) Yelloweye rockfish are subject to a 100-lb (45-kg) trip limit.
(5) Yellowtail rockfish taken in the tribal mid-water trawl fisheries are subject to a cumulative limit of 30,000 lb (13,608 kg) per 2-month period. Landings of widow rockfish must not exceed 10 percent of the weight of yellowtail rockfish landed in any two-month period. These limits may be adjusted by an individual tribe inseason to minimize the incidental catch of canary rockfish and widow rockfish.
(6) Other rockfish, including minor nearshore, minor shelf, and minor slope rockfish groups are subject to a 300-lb (136-kg) trip limit per species or species group, or to the non-tribal limited entry trip limit for those species if those limits are less restrictive than 300 lb (136 kg) per trip.
(7) Rockfish taken during open competition tribal commercial fisheries for Pacific halibut will not be subject to trip limits.
Lingcod are subject to a 300-lb (136-kg) daily trip limit and a 900-lb (408-kg) weekly limit.
The tribal allocation is 25,000 mt.
These proposed specifications and management measures for 2003 are issued under the authority of, and are in accordance with, the Magnuson-Stevens Act, the FMP, and 50 CFR parts 600 and 660 subpart G (the regulations implementing the FMP).
This proposed rule has been determined to be significant for purposes of Executive Order 12866.
Pursuant to Executive Order 13175, this rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the FMP. Under the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council must be a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction. In addition, regulations implementing the FMP establish a procedure by which the tribes with treaty fishing rights in the area covered by the FMP request new allocations or regulations specific to the tribes, in writing, before the first of the two fall groundfish meetings of the Council. The regulation at 50 CFR 660.324(d) further states “the Secretary will develop tribal allocations and regulations under this paragraph in consultation with the affected tribe(s) and, insofar as possible, with tribal consensus.” The tribal management measures in this proposed rule have been developed following these procedures. The tribal representative on
The Council prepared an initial regulatory flexibility analysis that describes the impact this proposed rule, if adopted, would have on small entities.
NMFS is proposing the 2003 annual specifications and management measures to allow West Coast commercial and recreational fisheries participants to fish the harvestable surplus of more abundant groundfish stocks, while also ensuring that those fisheries do not exceed the allowable catch levels intended to protect overfished and depleted stocks. The form of the specifications, in ABCs and OYS, follows the guidance of the Magnuson-Stevens Act, the National Standard Guidelines, and the FMP for protecting and conserving fish stocks. Annual management measures include trip and bag limits, size limits, time/area closures, gear restrictions, and other measures intended to allow year-round West Coast groundfish landings without compromising overfished species rebuilding measures.
Approximately 2,000 vessels participate in the West Coast groundfish fisheries. Of those, about 500 vessels are registered to limited entry permits issued for either trawl, longline, or pot gear. About 1,500 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 Small Business Administration. There are also about 450 groundfish buyers on the West Coast, approximately 5 percent of which are responsible for about 80 percent of West Coast groundfish purchases. 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.
The Council considered five alternative specifications and management measures regimes for 2003: the no action alternative, which would have implemented the 2002 regime for 2003; the low OY alternative, which set harvest levels so that overfished stocks would have an 80 percent probability of rebuilding within T
Each of the alternatives analyzed by the Council was expected to have different overall effects on the economy. Among other factors, the draft EIS for this action reviewed alternatives other than the no action alternative for expected declines in revenue and income from 2001 levels. Declines were not measured from 2002 levels because complete data from 2002 is not yet available. The low OY alternative was expected to reduce commercial exvessel revenue by $60 million in 2003, reduce overall commercial harvest income by $274 million, and reduce recreational fishery income (mainly charter businesses) by $150 million. The high OY alternative was expected to reduce commercial exvessel revenue by $6 million in 2003, reduce overall commercial harvest income by $16 million, and reduce recreational fishery income by $1.3 million. The economic effects of the Allocation Committee alternative were analyzed both for management with depth-based regulatory measures and without those measures. The Allocation Committee alternative without depth-based regulatory measures was expected to reduce commercial exvessel revenue by $21 million in 2003, reduce overall commercial harvest income by $53 million, and reduce recreational fishery income by $1.3 million. The Allocation Committee alternative with depth-based regulatory measures was expected to reduce commercial exvessel revenue by $15 million in 2003, reduce overall commercial harvest income by $40 million, and reduce recreational fishery income by $1.3 million. The Council's preferred alternative, which includes depth-based regulatory measures and a recreational fishery management regime designed to more strictly constrain harvest of overfished species, was expected to reduce commercial exvessel revenue by $13 million in 2003, reduce overall commercial harvest income by $35 million, and reduce recreational fishery income by $26 million. The Council's preferred alternative meets the conservation requirements of the Magnuson-Stevens Act, while reducing to the extent possible the adverse economic impacts of these conservation measures on the fishing industries and associated communities.
Depth based management is particularly expected to both protect overfished species from harvest in areas where they commonly occur and allow fisheries greater access to more abundant stocks outside of the closed areas. Without depth-based management, harvest of abundant stocks would have been more severely restricted because there would have been no measures to prevent vessels from operating in areas where abundant and overfished stocks cooccur.
Recreational fisheries management measures in 2001 and 2002 were not adequately conservative and those fisheries exceeded their overfished species retention levels in both years. Thus, the recreational fisheries are more severely restricted under the preferred alternative than under the high OY alternative or under either of the Allocation Committee alternatives. While the preferred alternative is expected to result in greater income declines for businesses associated with recreational fishing, those declines reflect conservation measures expected to better protect overfished species. Estimates of declines in revenues and income in this section are from the draft EIS for this action and may change with the completion of the final EIS.
Revenues for many groundfish fishery participants under the preferred alternative are expected to decline in 2003. These declines are mainly attributable to more restrictive management measures intended to protect overfished species. It is difficult to estimate exactly how this overall decline in landings and revenue will affect individual members of the groundfish fleet. However, the overall decline is significant enough to suggest that small businesses with a substantial portion of their incomes dependent on groundfish will be negatively affected by implementation of the 2003 proposed harvest levels. Overall, commercial vessels that target groundfish are expected to have a 21 percent decline in groundfish-related ex-vessel revenue and a 5 percent decline in total ex-vessel fishing revenue. The cumulative effect of 2003 management on the personal incomes of fishery participants is expected to be a $35 million decline.
Most of the significant catch and effort reductions in the recreational fleet would occur off California south of 40°10′ N. lat. Little change in overall recreational effort is expected in Washington or Oregon. For the West Coast recreational fleet, personal income is expected to decline by 10 percent overall, with a cumulative effect of a $26 million decline. These personal income values are a measure of the contribution of recreational fishing to businesses and local communities. Reduction in effort in California is expected to result in a reduction in revenue for businesses that cater to recreational fishers. Gross receipts for recreational groundfish activities will likely decline in proportion with the decline in number of angler trips, however, net profits may decline more given that certain costs will be fixed on an annual and per trip basis. Revenue declines from groundfish may be offset to the degree that charter vessels operate in other fisheries.
This rule does not propose any new reporting and recordkeeping requirements. Other regulations affecting the West Coast groundfish fisheries are primarily found at 50 CFR 660.301-360. A copy of this analysis is available from the Council (see
NMFS issued Biological Opinions (BOs) under the Endangered Species Act on August 10, 1990, November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, and December 15, 1999, pertaining to the effects of the groundfish fishery on chinook salmon (Puget Sound, Snake River spring/summer, Snake River fall, upper Columbia River spring, lower Columbia River, upper Willamette River, Sacramento River winter, Central Valley, California coastal), coho salmon (Central California coastal, southern Oregon/northern California coastal, Oregon coastal), chum salmon (Hood Canal, Columbia River), sockeye salmon (Snake River, Ozette Lake), and steelhead (upper, middle and lower Columbia River, Snake River Basin, upper Willamette River, central California coast, California Central Valley, south-central California, northern California, and southern California). During the 2000 Pacific whiting season, the whiting fisheries exceeded the chinook bycatch amount specified in the Pacific whiting fishery's Biological Opinion'e;s (whiting BO) (December 19, 1999) incidental catch statement estimate of 11,000 fish, by approximately 500 fish. In the 2001 whiting season, however, the whiting fishery's chinook bycatch was about 7,000 fish, which approximates the long-term average. After reviewing data from, and management of, the 2000 and 2001 whiting fisheries (including industry bycatch minimization measures), the status of the affected listed chinook, environmental baseline information, and the incidental catch statement from the 1999 whiting BO, NMFS determined in a letter dated April 25, 2002, that a re-initiation of the 1999 whiting BO was not required. NMFS has concluded that implementation of the FMP for the Pacific Coast groundfish fishery is not expected to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS, or result in the destruction or adverse modification of critical habitat. This action is within the scope of these consultations.
Administrative practice and procedure, American Samoa, Fisheries, Fishing, Guam, Hawaiian Natives, Indians, Northern Mariana Islands, Reporting and recordkeeping requirements.
l. The authority citation for part 660 continues to read as follows:
16 U.S.C. 1801
(a)
(ii) The northern and northwestern boundary is a line connecting the following coordinates in the order listed, which is the provisional international boundary of the EEZ as shown on NOAA/NOS Charts #18480 and #18007:
(iii) The southern limit is 47 deg.30′ N. lat.
(2)
(ii) The southern limit is 43 deg.00′ N. lat.
(3)
(ii) The southern limit is 40 deg.30′ N. lat.
(4)
(ii) The southern limit is 36 deg.00′ N. lat.
(5)
(ii) The southern limit is the U.S.-Mexico International Boundary, which is a line connecting the following coordinates in the order listed:
(b) Commonly used geographic coordinates—
(1) Cape Falcon, OR--45°46′ N. lat.
(2) Cape Lookout, OR--45°20′15″ N. lat.
(3) Cape Blanco, OR--42°50′ N. lat.
(4) Cape Mendocino, CA--40°30′ N. lat.
(5) North/South management line--40°10′ N. lat.
(6) Point Arena, CA--38°57′30″ N. lat.
(7) Point Conception, CA--34°27' N. lat.
(c)
33°50′ N. lat., 119°30′ W. long.;
33°50′ N. lat., 118°50′ W. long.;
32°20′ N. lat., 118°50′ W. long.;
32°20′ N. lat., 119°37′ W. long.;
33°00′ N. lat., 119°37′ W. long.;
33°00′ N. lat., 119°53′ W. long.;
33°33′ N. lat., 119°53′ W. long.;
33°33′ N. lat., 119°30′ W. long.;
and connecting back to 33°50′ N. lat., 119°30′ W. long.
(2) The Eastern CCA is a smaller area west of San Diego that is bound by straight lines connecting all of the following points in the order listed:
32°42′ N. lat., 118°02′ W. long.;
32°42′ N. lat., 117°50′ W. long.;
32°36′42″ N. lat., 117°50′ W. long.;
32°30′ N. lat., 117°53′30″ W. long.;
32°30′ N. lat., 118°02′ W. long.;
and connecting back to 32°42′ N. lat., 118°02′ W. long.
(d)
48°18′ N. lat.; 125°18′ W. long.;
48°18′ N. lat.; 124°59′ W. long.;
48°11′ N. lat.; 125°11′ W. long.;
48°11′ N. lat.; 124°59′ W. long.;
48°04′ N. lat.; 125°11′ W. long.;
48°04′ N. lat.; 124°59′ W. long.;
48°00′ N. lat.; 125°18′ W. long.;
48°00′ N. lat.; 124°59′ W. long.;
and connecting back to 48°18′ N. lat.; 125°18′ W. long.
(e)
(2) The inner boundary of the fishery management area is a line coterminous with the seaward boundaries of the States of Washington, Oregon, and California (the “3-mile limit”).
(3) The outer boundary of the fishery management area is a line drawn in such a manner that each point on it is 200 nm from the baseline from which the territorial sea is measured, or is a provisional or permanent international boundary between the United States and Canada or Mexico.
(b)
(5)
(6)
(b)
(1)
(A)
(B)
(ii)
(2)
(i)
(ii)
(iii)
(3)
Pension and Welfare Benefits Administration, Labor.
Request for information.
Section 657(c) of the Economic Growth and Tax Relief Reconciliation Act of 2001 directs the Department of Labor (Department) to develop, through regulations, safe harbors relating to the automatic rollovers of certain mandatory tax-qualified plan distributions to individual retirement plans. Under these safe harbors, the designation of an institution and the investment of funds by a plan administrator to receive automatic rollovers in accordance with section 401(a)(31)(B) of the Internal Revenue Code (Code) would be deemed to satisfy the fiduciary requirements of section 404(a) of the Employee Retirement Income Security Act (ERISA). The purpose of this document is to request information from the public on issues relating to the development of these safe harbors and to assist in drafting regulations. The Department also seeks information on low-cost individual retirement plans for purposes of transfers under section 401(a)(31)(B) of the Code and for other uses that promote the preservation of assets for retirement income.
Written or electronic responses should be submitted to the Department of Labor on or before March 10, 2003.
Written responses (preferably, at least three copies) should be addressed to the Office of Regulations and Interpretations, Pension and Welfare Benefits Administration, Room N-5669, U.S. Department of Labor, Washington, DC 20210, Attention: Automatic Rollovers RFI. All responses will be available for public inspection at the Public Disclosure Room, Pension and Welfare Benefits Administration, Room N-1513, U.S. Department of Labor, Washington, DC 20210. Electronic responses should contain “Automatic Rollovers RFI” in the subject line and be addressed to
Stacey A. Gillis or Katherine D. Lewis, Office of Regulations and Interpretations, Pension and Welfare Benefits Administration, Room N-5669, U.S. Department of Labor, Washington, DC 20210, telephone (202) 693-8510. This is not a toll-free number.
Tax-qualified retirement plans are permitted to make an immediate distribution to a separating participant without the participant's consent if the present value of the participant's vested accrued benefit does not exceed $5,000.
In July 2000, the Internal Revenue Service (Service) issued Revenue Ruling 2000-36
In this ruling, the Department advised the Treasury and the Service that, under Title I of the ERISA, in the context of a default direct rollover described in the ruling, the participant will cease to be a participant covered under the plan within the meaning of 29 CFR 2510.3-3(d)(2)(ii)(B), where the distribution constitutes the entire benefit rights of a participant, and the distributed assets will cease to be plan assets within the meaning of 29 CFR 2510.3-101. However, the Department also noted that the selection of an IRA trustee, custodian or issuer and IRA investment for purposes of a default direct rollover would constitute a fiduciary act subject to the general fiduciary standards and prohibited transaction provisions of ERISA.
Subsequent to the issuance of Revenue Ruling 2000-36, section 657 of the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA), Public Law 107-16, amended section 401(a)(31) of the Code to require that, absent an affirmative election by the participant, certain mandatory distributions from a qualified retirement plan must be directly transferred to an individual retirement plan
Additionally, section 657(a) of EGTRRA added a notice requirement in section 401(a)(31)(B)(i) of the Code requiring the plan administrator to notify the distributee in writing, either separately or as part of the notice required under section 402(f) of the Code, that the participant may transfer the distribution to another IRA.
As part of these new EGTRRA provisions, section 657(c)(2)(A) directs the Department to issue final regulations providing safe harbors under which the plan administrator's designation of an institution to receive the automatic rollover and the initial investment choice for the rolled-over funds would be deemed to satisfy the fiduciary requirements of section 404(a) of ERISA. Moreover, the provisions requiring all tax-qualified retirement plans to make automatic rollovers to IRAs the default option for involuntary distributions of certain defined amounts will not become effective until the Department issues the safe harbor regulations.
Section 657(c)(2)(B) of EGTRRA also states that the Secretaries of Labor and Treasury may provide, and shall give consideration to providing, special relief with respect to the use of low-cost individual retirement plans for purposes of Code section 401(a)(31)(B) transfers and for other uses that promote the preservation of assets for retirement income.
The Department is interested in comments regarding appropriate standards for the development of safe harbors under which the designation of an institution providing an IRA to receive the automatic rollover of funds and the initial investment choice for the rolled-over funds would be deemed to satisfy the fiduciary requirements of section 404(a) of ERISA. A list of some of the issues with respect to which comments are requested is included below. Responses on other issues pertinent to the Department's consideration are also invited.
As a framework for these comments, the Department notes that existing Treasury regulations describe fundamental requirements that must be satisfied in order for IRAs to maintain their tax classification under the Code.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
In responding to the questions above, please address the anticipated annual impact of any proposals on small business and small plans (plans with fewer than 100 participants).
All submitted responses will be made a part of the record of the proceeding referred to herein and will be available for public disclosure.