The FAA invites interested parties to comment on this notice of policy statement. Please submit comments to the above address. The FAA will consider all comments received by the closing date before issuing a final policy statement.

Title 14, Code of Federal Regulations (14 CFR) part 21 Certification Producers for Products and parts (part 21) defines the regulations for the portion of the aviation industry that supports the design and manufacture of aviation products and parts. This includes the requirements for the issue of type certificates and changes to those certificates; the issue of production certificates (PCs); the issue of airworthiness certificates; the issue of export airworthiness approvals; the rules governing the holder of any of these certificates, and procedural requirements for the approval of certain materials, parts, processes, and appliances.

14 CFR part 43 Maintenance, Preventive Maintenance, Rebuilding and Alteration (part 43) defines regulations for the portion of the aviation industry that supports continued airworthiness standards, or more specifically those that maintain the airworthiness status of products and parts. It prescribes rules governing the maintenance, preventive maintenance, rebuilding and alteration of any aircraft having a U.S. airworthiness certificate; foreign-registered civil aircraft used in common carriage or carriage of mail under the provisions of 14 CFR part 121 or 135; and airframe, aircraft engines, propellers, appliances, and component parts of such aircraft. Part 43 does not apply to any aircraft for which an experimental airworthiness certificate has been issued, unless a different kind of airworthiness certificate had previously been issued for the aircraft.

For products and parts that have already met the applicability requirements of part 43, § 43.3(j) authorizes a manufacturer to rebuild or alter (emphasis added) any aircraft, aircraft engine, propeller, appliance, or part manufactured by him under a type or PC, Technical Standard Order (TSO) Authorization, an FAA Parts Manufacturer Approval (PMA), or Product and Process Specification. Any maintenance, preventive maintenance and alterations are not included in the authority of § 43.3(j).

Part 145, Subpart D, Limited Ratings for Manufacturers, permits certain manufacturers to obtain, without further showing, a repair station certificate with a limited rating under Part 145. The FAA considered that the standards met by a manufacturer to obtain a PC, approved production inspection system (APIS), or other approved quality control system, provided a level or safety equivalent to that achieved under the standards applicable to a certificated repair station with a limited rating. This has permitted the holder of a limited rating for manufacturers to maintain and approve for return to service any article for which it is rated, and perform preventive maintenance on that article if certificated mechanics and repairmen are employed directly in charge of the maintenance and preventive maintenance in accordance with current § 145.103.

As proposed in Notice No. 99-09 (66 FR 41117, August 6, 2001) the FAA is eliminating the limited rating for manufacturers because maintenance practices and aircraft technologies have evolved since the establishment of limited ratings for manufacturers, and the FAA has determined that all repair facilities' systems for inspection, recordkeeping, and quality control should be consistent. These regulatory changes should also ensure uniform FAA surveillance activities.

Effective April 6, 2003, Manufacturer Maintenance Facilities will no longer be permitted. Under the revised 14 CFR part 145, existing MMFs will be required to have a limited repair station rating under § 145.61 if they choose to continue exercising similar privileges.

A production approval holder (PAH) is a person who holds a PC, APIS, a PMA, or a TSO authorization that controls the design and quality of a product or part thereof. For many years, products and/or parts have been shipped from suppliers to PAHs, between PAHs, and from PAHs to airlines, repair stations, distributors, etc. This notice is designed to clarify at what point a supplier or PAH may no longer perform work on its product under part 21, and when that work must be performed by an appropriately certificated person under part 43, part 91, part 145, or any of the operating rules of 14 CFR Subchapter G, Air Carriers and Operations for Compensation or Hire: Certification and Operations.

Part 21 applies to new products or parts that remain under the control of a PAH. Any work performed on those products or parts while under the control of the PAH's quality system is to be accomplished in accordance with that system. However, once the products or parts leave that quality system, any work performed would be in accordance with part 43.

Part 43 applies to: (1) Aircraft having a U.S. airworthiness certificate; (2) Foreign-registered civil aircraft used in common carriage of mail under the provisions of part 121, or 135 of this chapter; and (3) Airframe, aircraft engines, propellers, appliances, and component parts of such aircraft. This indicates that any work performed on an article before it meets the applicability requirements of part 43 would not have to be accomplished in accordance with part 43.

In an effort to better define where the regulatory authority of part 21 ends and the regulatory authority of part 43 begins, the Aviation Rulemaking Advisory Committee (ARAC) for part 21 suggested incorporating new language into part 21 that would clarify a manufacturer's authority to maintain products and parts that do not meet part 43 applicability requirements, i.e., new products and parts that have not yet left the PAH's quality system. This work would be done without the need for a repairman or mechanic certificate, and would not be considered to be maintenance as it pertains to part 43. Currently, aviation authorities such as Transport Canada and the Joint Aviation Authorities allow this. Rather than initiate a lengthy rule change to accommodate ARAC's recommendation, AFS and AIR are providing the following clarification:

Products or parts that leave a PAH or supplier (either foreign or domestic) and go to a PAH for incorporation into a higher level product/part (e.g., fuel control unit incorporated into an engine; or an engine incorporated into an aircraft) for which that PAH controls the type design must have work performed in accordance with the higher level PAH's quality system regardless of who performs the work. Conditions are as follows:

(1) The supplier or PAH working on the product or part must have the appropriate design data to ensure that the product or part continues to conform to its type design.

(2) The PAH incorporating the product or part must have an approved system in place (e.g., quality control system, material review board, configuration control, etc.) that defines how work is performed and documented. If the product or part is worked on by the supplier, it must then be accepted through the PAH's quality system.

(3) If the PAH incorporating the product or part chooses to work on it, the work must be accomplished by authorized personnel who are familiar with the product's or part's complexities.

(4) If a product or part has moved through several suppliers or PAHs during its assembly, the PAH that is incorporating the product or part into its type design must determine which of those organizations is the appropriate one to work on the product or part based on the above conditions.

Products or parts that leave a PAH's quality system and are delivered to an airline, repair station, distributor, etc., are intended to be installed on a higher assembly that has already met the applicability requirements of part 43. Therefore, any maintenance, preventive maintenance, or alterations on such articles will be performed by persons authorized under part 43.

Effective April 6, 2003, products or parts that leave a PAH or supplier (either foreign or domestic) and go to a PAH for incorporation into a higher level product/part for which that PAH controls the type design must have work performed in accordance with the higher level PAH's quality system under part 21.

Products or parts shipped to airlines, repair stations, distributors, etc., after leaving a PAH's approved quality system must be maintained in accordance with part 43. Any used products or parts returned to the manufacturer must be maintained in accordance with part 43 under the provisions of the new § 145.61. Any used products or parts installed on new production aircraft must have been maintained in accordance with part 43 prior to their installation. As noted in Notice Number 99-09, the FAA will give full consideration to the part 21 quality control system established by the manufacturer when it applies for the § 145.61, Limited rating under new § 145.51, Application for certificate.

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-369-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, New England Region, Office of the Regional Counsel, Attention: Rules Docket No. 2000-NM-369-AD, 12 New England Executive Park, Burlington, MA 01803-5299.

On August 15, 2001, the FAA issued airworthiness directive (AD) 2000-17-10 R1, Amendment 39-12378 (66 FR 44030 August 22, 2001), to require modifications of the engine turbine cooling air panel at the flight engineer/second officer's console, pilot's caution and warning light panel on the main instrument panel, and installation of an engine turbine air temperature monitoring system. That action was prompted by reports of an undetected fire breaching the HSGB case on certain Rolls-Royce engines installed on in-service airplanes due to lack of an internal fire detection system within the HSGB. That condition, if not corrected, could result in engine damage and increased difficulty in extinguishing a fire.

Since that AD was issued, it has been determined that Lockheed Martin L-1011-385 series airplanes with RB211-22B-02 series engines need to be added to the applicability. Also since that AD was issued, the Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom (U.K.), notified the FAA that other unsafe conditions may exist on Rolls-Royce plc RB211-22B-02, RB211-524B-02, RB211-524B-B-02, RB211-524B3-02, RB211-524B4-02, and RB211-524B4-D-02 series turbofan engines which are installed in Lockheed Martin models L-1011-385-1, L-1011-385-1-14, L-1011-385-1-15, and L-1011-385-3 airplanes. The CAA has reported that recently an event occurred in which the continued operation of an engine with an undetected failure of the LP compressor shaft location bearing, resulted in failure of the LP compressor and turbine shaft assembly and severe secondary engine damage. The manufacturer states that the method used to detect pending failure of the LP compressor shaft location bearing is to monitor the LP vibration level on an indicator in the cockpit. This method has proved ineffective.

This proposal contains actions that would be required for these Rolls-Royce engines and the airplanes on which the engines are installed. Those actions must be done so that the installation of the engine turbine air temperature monitoring system and installation of the LP compressor shaft extreme axial movement detector system are complete. Without complete monitor and detector systems, engine damage and increased difficulty in extinguishing a fire could occur, and failures of the LP compressor shaft location bearing would continue undetected. These actions have been coordinated with the Atlanta Aircraft Certification Office and the Transport Airplane Directorate. All parties agree that a single AD addressing these unsafe conditions and the complete modifications to address these unsafe conditions should be issued from the Engine and Propeller Directorate.

Rolls-Royce plc has issued Mandatory Service Bulletins (MSB) RB.211-72-C863, dated February 15, 2002, applicable to RB211-22B-02 engines and MSB RB.211-72-C963, dated December 4, 2001, applicable to RB211-524B-02, RB211-524B-B-02, RB211-524B3-02, RB211-524B4-02, and RB211-524B4-D-02 engines, that specify installation of an LP compressor shaft extreme axial movement detector system. These MSB's require compliance with five other service bulletins (SB's) concurrently or before accomplishing the applicable MSB. This proposal would require compliance with the latest revisions of these SB's, as listed in this proposal. The SB's are as follows:

• RR SB RB.211-72-6149, Revision 9, dated November 24, 1999, which introduces a new design engine front bearing housing assembly containing changes to the intermediate pressure (IP) and LP speed probe terminal block positions to prevent oil leakage.

• RR SB RB.211-72-C178, Revision 1, dated March 9, 2001, which introduces a revised engine gearbox breather duct assembly that provides mounting locations for overheat detectors.

• RR SB RB.211-77-C144, Revision 1, dated February 13, 2002, which introduces overheat detectors mounted in the engine gearbox breather duct assembly, to provide detection of temperature increase in the gearbox breather air flow, and early detection of fires originating in the gearbox.

• RR MSB RB.211-71-E047, dated August 2, 2002, which introduces a revised speed probe loom electrical support assembly, located on the engine front bearing housing assembly.

• Lockheed Martin SB 093-77-059, Revision 2, dated April 11, 2002, which introduces modifications to the airplane instrument panels and consoles, necessary for compatibility with the installation of the engine turbine air temperature monitoring system.

• Lockheed Martin SB 093-77-060, dated April 11, 2002, which introduces modifications to the airplane instrument panels and consoles, necessary for compatibility with the installation of engine failure indicators and LP compressor shaft extreme axial movement detector indicators.

These modifications would be mandated by this proposal. The CAA classified MSB RB.211-72-C863, MSB RB.211-72-C963, and MSB RB.211-71-E047 as mandatory and issued AD 006-02-2002, dated February 15, 2002, AD 006-12-2001, dated December 4, 2001, and AD 003-08-2002, dated August 2, 2002 respectively, in order to assure the airworthiness of these engines in the U.K.

Although Mandatory Service Bulletins RB.211-72-C863 and RB.211-72-C963 specify a fixed date for compliance for RB211-22B-02, RB211-524B-02, RB211-524B-B-02, RB211-524B3-02, RB211-524B4-02 and RB211-524B4-D-02 engines, the FAA requires the compliance to be done within a specified time span such as months or years from the effective date of the AD.

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

Since an unsafe condition has been identified that is likely to exist or develop on other Lockheed Martin models L-1011-385-1, L-1011-385-1-14, L-1011-385-1-15, and L-1011-385-3 airplanes and Rolls-Royce plc RB211-22B-02, RB211-524B-02, RB211-524B-B-02, RB211-524B3-02, RB211-524B4-02, and RB211-524B4-D-02 series turbofan engines of the same type design that are used on airplanes registered in the United States, the proposed AD would require:

• Modifications of the engine turbine cooling air panel at the flight engineer/second officer's console, pilot's caution and warning light panel on the main instrument panel.

• Installation of an engine turbine air temperature monitoring system.

• Installation of a revised engine front bearing housing assembly.

• Installation of speed probe loom electrical support assembly part number (P/N) FW15212, if applicable.

• Installation of an LP compressor shaft extreme axial movement detector system.

The actions would be required to be done in accordance with the MSB's and SB's described previously.

There are approximately 492 engines and 164 airplanes of the affected design in the worldwide fleet. The FAA estimates that 270 engines installed on 90 airplanes of U.S. registry would be affected by this proposed AD. The FAA estimates that it would take approximately 40 work hours per engine to accomplish the proposed actions, and that the average labor rate is $60 per work hour. Required parts would cost approximately $58,956 per engine. The FAA estimates that it would cost approximately $37,920 per airplane to do the airframe panel modifications. In addition, one airplane of U.S. registry would require speed probe loom electrical support assemblies P/N FW15212 installed on all three engines, at an estimated cost of $588 per engine. Based on these figures, the total cost of the proposed AD to U.S. operators is estimated to be $19,980,684.

This proposed rule does not have federalism implications, as defined in Executive Order 13132, because it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the FAA has not consulted with state authorities prior to publication of this proposed rule.

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2003-NE-03-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, New England Region, Office of the Regional Counsel, Attention: Rules Docket No. 2003-NE-03-AD, 12 New England Executive Park, Burlington, MA 01803-5299.

The Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom (U.K.), recently notified the FAA that an unsafe condition may exist on RR RB211 Trent 875, Trent 877, Trent 884, Trent 892, Trent 892B, and Trent 895 turbofan engines. The CAA advises that three HP compressor rotor rear stage 5 and 6 discs and cone shafts, P/Ns FK25230 and FK27899, were found with crack indications in the stage 5 and 6 blade loading slots, during overhaul inspection. The manufacturer's analysis has not yet been able to identify the root cause of these cracks, or to fully explain the crack propagation rate. As a result of the analysis thus far, a new lower life limit of 7,500 cycles-since-new (CSN) has been assigned by the manufacturer to these HP compressor rotor rear stage 5 and 6 discs and cone shafts. This condition, if not corrected, could result in stage 5 and 6 disc crack initiation and propagation leading to uncontained disc failure and damage to the airplane.

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

Since an unsafe condition has been identified that is likely to exist or develop on other RR RB211 Trent 875, Trent 877, Trent 884, Trent 892, Trent 892B, and Trent 895 turbofan engines of the same type design that are used on airplanes registered in the United States, the proposed AD would require replacing HP compressor rotor rear stage 5 and 6 discs and cone shafts, P/Ns FK25230 and FK27899, at or before reaching the new reduced life cycle limit of 7,500 CSN.

These proposed actions are considered interim action and the FAA may take additional actions in the future.

There are approximately 350 engines of the affected design in the worldwide fleet. The FAA estimates that 90 engines installed on airplanes of U.S. registry would be affected by this proposed AD. The FAA also estimates that the prorated cost of the life reduction per engine would be approximately $112,195. Based on these figures, the total cost of the proposed AD is estimated to be $10,097,550.

This proposed rule does not have federalism implications, as defined in Executive Order 13132, because it would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, the FAA has not consulted with state authorities prior to publication of this proposed rule.

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

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

On June 28, 2001, the Department of Justice published an interim rule to implement section 3 and related provisions of Public Law 106-546, the DNA Analysis Backlog Elimination Act of 2000. 66 FR 34363 (June 28, 2001). That rule, in part, specified the federal offenses that are treated as “qualifying Federal offenses” for purposes of collecting DNA samples from federal offenders. Individuals convicted of one of the specified qualifying federal offenses must have samples of their DNA collected and the resulting information entered into the Combined DNA Index System which the Federal Bureau of Investigation has established pursuant to 42 U.S.C. 14132.

Subsequent to the publication of that interim rule, Congress enacted Public Law 107-56, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001. Section 503 of the USA PATRIOT ACT provided that three additional categories of offenses shall be treated for purposes of DNA sample collection as qualifying federal offenses, as determined by the Attorney General: (1) Any offense listed in section 2332b(g)(5)(B) of title 18, United States Code; (2) any crime of violence (as defined in section 16 of title 18, United States Code); and (3) any attempt or conspiracy to commit any of the above offenses. See 42 U.S.C. 14135a(d)(2). The purpose of this proposed rule is to revise a section of the existing regulations, 28 CFR 28.2, to reflect the addition of these three new categories.

The offenses listed in the proposed revision of § 28.2 are generally grouped by title of the United States Code for convenience in readability and application. The derivation of the listing is as follows:

Section 3(d)(1) of the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. 14135a(d)(1)) identifies the qualifying offenses that are reflected in the current § 28.2. These offenses are all carried forward in the proposed revision of § 28.2. In some instances, however, the offenses in the current rule will be subsumed in broader references in the revised listing that reflect the new categories added by section 503 of the USA PATRIOT ACT. See 42 U.S.C. 14135a(d)(2). In particular, under the current listing, only voluntary manslaughter under 18 U.S.C. 1112 is covered. See 42 U.S.C. 14135a(d)(1)(A); 28 CFR 28.2(b). In accordance with section 503 of the USA PATRIOT ACT, however, the expanded offense categories now include crimes of violence as defined in 18 U.S.C. 16. See 42 U.S.C. 14135a(d)(2)(B). The revised listing includes 18 U.S.C. 1112 without qualification, reflecting the Attorney General's determination that involuntary manslaughter constitutes such an offense.

Likewise, the current listing includes a more limited set of offenses under 18 U.S.C. 1153, an Indian country jurisdictional provision. See 42 U.S.C. 14135a(d)(1)(F); 28 CFR 28.2(d). Specifically, of the offenses identified in 18 U.S.C. 1153, the current listing does not include “assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury (as defined in section 1365 of this title), an assault against an individual who has not attained the age of 16 years,” or “a felony under section 661 of this title.” 18 U.S.C. 1153. However, the previously excluded assaultive crimes are crimes of violence as defined in 18 U.S.C. 16. The revised listing encompasses a broader range of offenses under 18 U.S.C. 1153, excluding only felonies under section 661 of title 18, which defines nonviolent larceny offenses.

Section 503 of the USA PATRIOT ACT added offenses listed in 18 U.S.C. 2332b(g)(5)(B)—a statutory list of crimes that are often committed by terrorists—as qualifying offenses for purposes of DNA sample collection. The proposed revision of 28 CFR 28.2 incorporates all of these offenses.

In some instances, offenses listed explicitly in 18 U.S.C. 2332b(g)(5)(B) are subsumed in broader references in the proposed revision to 28 CFR 28.2. For example, 18 U.S.C. 2332b(g)(5)(B) includes offenses under section “844(f)(2) or (3)” of title 18. Since the offense defined by section 844(f)(1) of title 18 is a crime of violence—and hence includable on the basis of 42 U.S.C. 14135a(d)(2)(B)—the listing in the proposed revision of § 28.2 includes all offenses under 18 U.S.C. 844(f) without qualification.

Section 503 of the USA PATRIOT ACT also added offenses that are crimes of violence under the definition of 18 U.S.C. 16. According to that provision, a crime of violence is “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

Some offenses that satisfy this definition are independently covered by the original offense categories in 42 U.S.C. 14135a(d)(1) or the listing of offenses in 18 U.S.C. 2332b(g)(5)(B). However, there are a large number of federal crimes which satisfy this definition and are not otherwise included in the offense categories in the DNA sample collection statute. The proposed revision of § 28.2 includes an extensive listing of such provisions.

Many crimes of violence are defined or referenced in discrete sections, subsections, or paragraphs of the United States Code. The listing in proposed § 28.2 identifies such offenses by referring to the appropriate sections, subsections, or paragraphs.

In some instances, however, sections of the United States Code effectively define a number of offenses—some violent and some nonviolent under the definition of 18 U.S.C. 16—without structural subdivisions that can readily be referenced in identifying the violent offenses. For such provisions, the proposed listing in revised § 28.2 identifies the covered crimes of violence by including appropriate phrases that specify the relevant limitations.

For example, 18 U.S.C. 241 generally prohibits conspiracies to violate federally protected rights. The basic offense under the section is punishable by imprisonment for up to 10 years. The section also includes aggravated offenses, punishable by imprisonment for any term of years or for life, for cases in which “death results” or that involve “kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.” The aggravated offenses under 18 U.S.C. 241 are crimes of violence under the definition of 18 U.S.C. 16. Consequently, the listing in proposed § 28.2 refers to offenses under section 241 “involving an offense punishable by imprisonment for any term of years or for life.” Similarly, the subsequent section of the code, 18 U.S.C. 242, generally prohibits willful deprivations of federally protected rights under color of law, and the basic offense it defines is graded as a misdemeanor. The section also includes aggravated offenses, punishable at the felony level, that constitute crimes of violence. The listing in proposed § 28.2 accordingly covers offenses under section 242 “if a felony.”

Other types of qualifying phrases are also used, as appropriate, in relation to sections that set forth alternative grounds of liability that effectively define both violent and nonviolent offenses under 18 U.S.C. 16. For example, 18 U.S.C. 874 prohibits securing kickbacks from public works employees “by force [or] intimidation,” or alternatively by “threat of procuring dismissal from employment, or by any other manner whatsoever.” The listing in proposed § 28.2 accordingly refers to offenses under section 874 “involving force or intimidation.”

In addition to crimes of violence that are currently included in the United States Code, the listing in the proposed rule includes two sections defining offenses involving rape or sexual abuse of children that have been repealed, 18 U.S.C. 2031 and 2032. Notwithstanding the repeal of these provisions, offenders who were convicted under them may currently be in custody or under supervision. The inclusion of these sections in the rule ensures that DNA samples will be collected from these offenders.

The amendment in section 503 of the USA PATRIOT ACT also provides that any attempt or conspiracy to commit a qualifying federal offense is a qualifying federal offense for purposes of DNA sample collection. See 42 U.S.C. 14135a(d)(1)(G) and (2)(C). In part, this is implemented through the inclusion in proposed § 28.2(a)-(h) of various specific provisions that encompass liability for attempts or conspiracies. However, there are also cross-cutting attempt and conspiracy provisions in the United States Code, including 18 U.S.C. 371 and 844(n) and 21 U.S.C. 846, which apply to categories of offenses that include both offenses that are qualifying federal offenses for DNA sample collection purposes and offenses that are not. Paragraph (i) in proposed § 28.2 makes it clear that any attempt or conspiracy under these provisions is a qualifying federal offense, if the object of the attempt or conspiracy includes an offense that is a qualifying federal offense.

The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities for the following reason: The regulation concerns the collection by federal agencies of DNA samples from certain offenders.

This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review,” section 1(b), Principles of Regulation. The Department of Justice has determined that this rule is a “significant regulatory action” under Executive Order 12866, section 3(f), and accordingly this rule has been reviewed by the Office of Management and Budget.

This regulation 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. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform.

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, or innovation, or on the ability of the United States-based companies to compete with foreign-based companies in domestic and export markets.

For the reasons stated in the preamble, the Department of Justice proposes to amend 28 CFR chapter I by amending part 28 as follows:

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

The EPA is proposing to approve the removal of State rules controlling fluoride emission limitations from existing primary aluminum plants as a revision to the plan for control of fluoride emissions from existing primary aluminum plants as requested by the State of Indiana on October 17, 2002, and as supplemented on January 22, 2003. The State submittal is in response to the repeal of these regulations from the Indiana Administrative Code (IAC). These rules have been superseded by other State rules which incorporate current Federal requirements into the IAC by reference. Because Federal requirements are federally enforceable, they need not be included in the State plan. The rule removed from the Indiana Plan applies to a single source, Aluminum Company of America (ALCOA) located in Warrick County. Because ALCOA remains subject to more stringent Federal requirements, Federal approval of this repeal should not result in an adverse impact on air quality.

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

Throughout this document, “we,” “us” and “our” refer to EPA.

Section 129 of the Clean Air Act, as amended in 1990 (CAA or the Act), requires EPA to develop regulations under section 111 to control air pollutant emissions from solid waste incineration units. Emissions from new municipal waste combustor (MWC) units are to be addressed by standards of performance for new sources (New Source Performance Standards or NSPS), and emissions from existing MWC units are to be addressed by guidelines (Emission Guidelines or EG). The Act requires that the MWC regulations reflect the maximum achievable control technology (MACT) and specifies that the emission standards for existing units in a category must be at least as stringent as the average emissions limitation achieved by the best performing 12 percent of units in the category (section 129(a)(2)). This is commonly referred to as the “MACT floor” for existing MWC units. The Act requires that the EG for existing MWC units include MACT-based numerical emission limits for the following ten air pollutants: particulate matter (PM), opacity, sulfur dioxide (SO2), hydrogen chloride (HCl), oxides of nitrogen (NOX), carbon monoxide (CO), lead (Pb), cadmium (Cd), mercury (Hg), and dioxins/furans (see section 129(a)(4)). The EG must also include monitoring and reporting requirements and operator training requirements (§ 129(b)(1)).

On December 19, 1995, pursuant to sections 111 and 129 of the Act, EPA promulgated 40 CFR part 60, subpart Cb (Emission Guidelines and Compliance Schedules for Municipal Waste Combustors). See 60 FR 65387. The EG, contained in subpart Cb, apply to existing MWC units, defined as MWC units for which construction was commenced on or before September 20, 1994.

On April 8, 1997, the United States Court of Appeals for the District of Columbia Circuit vacated subpart Cb as it applies to MWC units with an individual capacity to combust less than or equal to 250 tons per day (tpd) of municipal solid waste (MSW) (small MWC units) and all cement kilns combusting MSW, consistent with their opinion in Davis County Solid Waste Management and Recovery District v. EPA, 101 F.3d 1395 (D.C. Cir. 1996), amended, 108 F.3d 1454 (D.C. Cir. 1997). As a result, on August 25, 1997, EPA amended subpart Cb to apply only to MWC units with an individual capacity to combust more than 250 tpd of MSW (large MWC units). See 62 FR 45116.

Section 129(b)(2) of the Act requires States with existing MWC units subject to the EG to submit plans to EPA that implement and enforce the EG no later than one year after promulgation of the EG. Accordingly, State plans were due on December 19, 1996 (See also 40 CFR 60.39(b)). The court decision vacating the EG requirements for small MWC units and cement kilns did not affect the due date or the required content of State plans for large MWC units.1 For existing large MWC units located in States that have not submitted an approvable plan within two (2) years of promulgation of the EG (i.e., December 19, 1997), section 129(b)(3) of the Act requires EPA to adopt a Federal Plan to implement and enforce the EG. On November 12, 1998, EPA promulgated a Federal Plan for existing large MWC units not covered by an EPA-approved State plan, codified at 40 CFR part 62, subpart FFF. See 63 FR 63191. Any MWC units covered by a State plan submitted after December 19, 1997, are subject to the Federal Plan until EPA approves the State plan. California's State Plan (the Plan) was submitted by the California Air Resources Board (CARB) on September 23, 1998.

According to CARB, there are only three facilities with existing large MWC units in the State. One of these facilities is located in the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD), and two facilities are located in South Coast Air Quality Management District (SCAQMD). Both air districts are using district operating permits, containing the requirements of the EG, as the enforceable mechanisms to implement the EG. The following table identifies the three MWC facilities (six large MWC units) covered by the State Plan and the corresponding permits issued by the districts. If there are additional MWC units that meet the applicability criteria of subpart Cb but are not identified in the State Plan inventory, then the Federal Plan would apply to them.

The California State Plan was submitted to satisfy the requirements of sections 111(d) and 129 of the Act, and to implement the EG contained in 40 CFR, part 60, subpart Cb. The Plan implements the emission limits established in the EG for organics (dioxins/furans), metals (cadmium (Cd), lead (Pb), mercury (Hg), particulate matter (PM), and opacity), acid gases (hydrogen chloride (HCl) and sulphur dioxide (SO2)), nitrogen oxides (NOX), and fugitive ash emissions. These pollutants can cause adverse effects to public health and the environment. The Plan also implements the EG requirements for MWC operating practices, which include requirements for carbon monoxide (CO) emissions, load, PM control device inlet flue gas temperature, and operator training/certification.

Under section 111(d) of the Act, EPA has established general procedures, codified at 40 CFR part 60, subpart B, that States must follow in adopting and submitting State plans. The following provides a brief discussion of the requirements, found in subparts B and Cb, for an approvable State plan for existing large MWC units and EPA's review of the California State Plan with respect to those requirements. A detailed discussion of the Plan and EPA's evaluation can be found in the Technical Support Document (TSD) for the California Plan (February 2003).

Subpart B at 40 CFR 60.24(a) requires that the State plan include emissions standards, defined in 40 CFR 60.21(f) as “a legally enforceable regulation setting forth an allowable rate of emissions into the atmosphere, or prescribing equipment specifications for control of air pollution emissions.” In the State of California, local air quality management and air pollution control districts (districts) have primary responsibility for control of stationary air pollution sources, such as MWC units. Therefore, each district with existing large MWC units is required to develop a regulation or other enforceable mechanism to implement the EG. The SJVUAPCD and SCAQMD are using district operating permits, containing the requirements of the EG, as the enforceable mechanisms. The conditions of these submitted permits will remain in effect as part of the State Plan until a revision to the Plan is approved. Expiration of a district operating permit, or revisions to permit conditions, will not automatically revise the State Plan. Any revisions to the Plan must be submitted to EPA for review and approval as a section 111(d)/129 state plan revision.

Subpart B at 40 CFR 60.26 requires that the State plan demonstrate that the State has legal authority to adopt and implement the emission standards and compliance schedules contained in the plan. The State's Attorney General has certified that the State of California and the districts have sufficient legal authority to develop the State plan to implement the EG. In addition, the State's Attorney General has certified that the districts have the authority to modify existing district operating permits and incorporate the EG requirements. The State statutes providing such authority are contained in the California Health and Safety Code (H&SC).

Subpart B at 40 CFR 60.25(a) requires that the State plan include a complete source inventory of all designated facilities regulated by the EG: existing MWC units (i.e., those MWC units constructed prior to September 20, 1994) with the capacity to combust greater than 250 tpd of MSW (see 40 CFR 60.32b(a)). CARB has submitted an inventory of all existing large MWC units in California as part of the State Plan. These facilities were identified in the table shown in Section II.A of this document.

Subpart B at 40 CFR 60.25(a) requires that the State plan include an emissions inventory that estimates emissions of the designated pollutant regulated by the EG: MWC emissions. For each affected MWC facility, the California State Plan contains information on estimated MWC emission rates (in tpy) for the nine regulated pollutants: dioxins/furans, Cd, Pb, Hg, PM, HCl, SO2, NOX, and CO. These estimated emission rates are based on stack test data and continuous emission monitoring data.

Subpart B at 40 CFR 60.24(c) specifies that the State plan must include emission standards that are no less stringent than the EG, and section 129(b)(2) of the Act requires that State plans be “at least as protective” as the EG. The district operating permits specify emission standards that are consistent with and “at least as protective” as those in Subpart Cb, as amended.

Subpart B at 40 CFR 60.24(a) requires that the State plan include a compliance schedule that owners and operators of affected MWC units must meet in complying with the requirements of the plan. Subpart Cb at 40 CFR 60.39b requires that final compliance with the requirements of the EG be accomplished by no later than December 19, 2000.2 For any compliance schedule extending more than 12 months beyond the date required for submittal of the State plan (December 19, 1996), 40 CFR 60.24(e)(1) requires that the compliance schedule include enforceable increments of progress toward compliance, as specified in 60.21(h)(1). The district operating permits establish interim and final compliance dates, as required by 60.24(e)(1) and 60.39(b). However, the SJVUAPCD permit for the Stanislaus Resource Recovery Facility does not require final compliance with all requirements of the EG by December 19, 2000. As discussed in the TSD, the Stanislaus facility is currently subject to the Federal Plan and should already be in compliance. Approval of the State Plan will not extend the compliance dates contained in the Federal Plan.

Subpart Cb at 40 CFR 60.38b and 60.39b requires that the State plan contain applicable 40 CFR part 60, subpart Eb (MWC NSPS) requirements relating to performance testing, monitoring, reporting and recordkeeping. The district operating permits meet the requirements of 60.38b and 60.39b. However, as explained in the TSD, the SJVUAPCD permit contains language that is potentially confusing regarding the federal enforceability of certain conditions. EPA expects the facility to conduct annual tests in accordance with the district permit conditions and in accordance with 60.58b. Approval of the Plan does not relieve the facility from any testing requirements. Requirements contained in the State Plan become federally enforceable once the Plan is approved.

Subpart B at 40 CFR 60.23 contains the requirements for public participation that must be met by the State in adopting a State plan. California fulfilled the public participation requirements for the State plan through separate district public participation and notification processes. CARB included documents in the Plan submittal demonstrating that the districts met the requirements by providing public notice of the Plan and the opportunity for public hearings on the Plan.3

Subpart B at 40 CFR 60.25(e) and (f) requires States to submit to EPA annual reports on the progress of plan enforcement. The first progress report must be submitted by the State one year after EPA approval of the State plan.

In summary, EPA finds that the California State Plan meets the requirements applicable to such plans in 40 CFR part 60, subparts B and Cb.

We believe the Plan is consistent with the relevant policy and guidance regarding approval of CAA section 111(d)/129 State plans. The TSD describes in detail the discrepancies between the Plan and the EG regarding waivers, floating compliance dates, and testing requirements. EPA has determined that these discrepancies in the submitted Plan have limited impact because of the following reasons:

1. Waivers: The underlying federal conditions in the EG and Federal Plan will continue to apply in the case of waivers. EPA cannot delegate to districts the ability to approve waivers of load and temperature limits that are not in accordance with the purposes specified in 60.53b(b) and (c). Waivers of operator training course requirements must be approved by EPA, and as of this date, EPA Region 9 has not received any such requests.

2. Floating compliance dates: The final dates of compliance for the Stanislaus facility, as contained in the Federal Plan, have already passed and thus the facility should already be in compliance. Approval of the State Plan will not extend the compliance dates contained in the Federal Plan. The facility is subject to the Federal Plan until the State Plan approval becomes effective.

3. Testing requirements: The Stanislaus permit does contain the appropriate requirements for source testing, but it does not cite to the EG for these provisions. The permit contains language that is potentially confusing regarding federal enforceability of certain conditions. After a State incorporates a requirement in the State Plan and the State Plan is approved by EPA, the State requirement becomes federally enforceable.

The TSD describes additional revisions that do not affect EPA's current action but are recommended for the next time the local agencies modify the facility permits.

Based on the rationale discussed above and in further detail in the TSD, EPA is proposing approval of the State of California section 111(d)/129 plan for the control of emissions from existing large MWC units. Until the State Plan receives final approval, the sources covered by this plan will remain subject to the Federal Plan. The compliance schedules contained in the Federal Plan (40 CFR part 62, subpart FFF) will continue to apply to the Stanislaus Resource Recovery Facility. As provided by 40 CFR 60.28(c), any revisions to the California State Plan will not be considered part of the applicable plan until submitted by CARB in accordance with 40 CFR 60.28(a) or (b), as applicable, and until approved by EPA in accordance with 40 CFR part 60, subpart B. We will accept comments from the public on this proposal for the next 30 days. Unless we receive significant new information during the comment period, we intend to publish a final approval action that will make the State Plan requirements federally enforceable.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed 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 proposed 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 proposed 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 proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule proposes to approve pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a State plan implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing State plan submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a State plan submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a State plan submission, to use VCS in place of a State plan submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Section 102(c) of the Marine Protection, Research, and Sanctuaries Act (MPRSA) of 1972, as amended, 33 U.S.C. 1401, et seq., gives the Administrator of EPA the authority to designate sites where ocean disposal, also referred to interchangeably as ocean dumping, may be permitted. On December 23, 1986, the Administrator delegated the authority to designate ocean disposal sites to the Regional Administrator of the Region in which the site is located. The proposed site designations and de-designations, located at the mouth of the Columbia River, are within Region 10 and these actions are being taken pursuant to the Regional Administrator's delegated authority.

The EPA Ocean Dumping Regulations promulgated under the MPRSA require, among other things, that ocean dumping sites be designated by promulgation in 40 CFR part 228. See 40 CFR 228.4. Designated ocean dumping sites are codified at 40 CFR 228.14 and 228.15. A total of four ocean dumping sites (Site A, Site B, Site E, and Site F) off of the mouth of the Columbia River were designated in August 1986 (51 FR 29923) (Figure 1) to be used as disposal sites for dredged materials from Columbia River navigation projects. Sites A, B and F have, over time, proven to be inadequate to handle long term disposal of dredged material from the Columbia River navigation projects without the creation of adverse wave conditions at the disposal sites. This rule proposes to de-designate Sites A, B and F. Site E, because its size as currently designated inhibits the ability to minimize interference with other activities in the marine environment, needs to be modified to allow for changed circumstances concerning the use of the site. This rule proposes to designate a new site, the Shallow Water site, which incorporates the 1986-designated Site E but appreciably expands it to provide sufficient space to spread dredged materials so as to avoid the creation of conditions that would interfere with navigation safety. Dredged material disposed of at the proposed site is expected to contribute material to the littoral zone. This rule also proposes a completely new site, the Deep Water site, which would be located approximately 4.5 to 6 nautical miles from the mouth of the Columbia River off the State of Oregon. The Deep Water site would provide capacity for dredged materials from Columbia River navigation projects that cannot be accommodated in the nearshore zone. The Deep Water site would also be available for use by the United States Army Corps of Engineers (Corps) when storm events preclude the use of nearshore disposal locations. In inclement weather, conditions nearer the shore and the nearer to the jetties (i.e., at the Shallow Water and North Jetty sites) are more dangerous than conditions at the Deep Water site. Visibility is impaired and winds and currents can broadside a vessel and push it into shallow water at the North Jetty and Peacock Spit, or onto the jetty itself. Waves also can build up in shallow water and between the jetties during an ebb tide during which time navigation across the entrance bar can be closed by the United States Coast Guard.

The availability of ocean dredged materials disposal sites (ODMDSs) in the vicinity of the mouth of the Columbia River is necessary to provide disposal options for the Corps to maintain deep-draft, international commerce and navigation through authorized federal navigation channels. Three of the existing ODMDSs designated in 1986, Sites A, B and F, have experienced mounding, generating a potentially hazardous navigation safety condition. The developing mounds at Sites A, B, and F threatened to create hazardous conditions for large ships and small craft due to waves refracting from and breaking over the mounds. Commercial shippers, crab fishermen, and the U.S. Coast Guard expressed concern over this situation to both the Corps and EPA. Efforts were undertaken by the federal government to temporarily expand the existing sites in 1993 and 1997 and to manage distribution of the dredged material within the available site capacities while seeking a more permanent management solution. Circumstances at sites A, B and F necessitate de-designation of the sites so that no further use is made of them. Conditions at site E are changed such that modification of the site to withdraw designation of its current configuration to allow for a permanent expansion to a larger site, the Shallow Water site, is proposed. Designating the Shallow Water site and a new Deep Water site is part of the permanent management solution for handling dredged materials from Columbia River navigation projects. These designations are being proposed in accordance with Sec. 228.4(e) of the Ocean Dumping Regulations, which allow EPA to designate ocean disposal sites for dredged materials.

Entities potentially regulated by the proposed rule are persons, organizations, or government bodies seeking to dispose of dredged material in ocean waters at the Mouth of the Columbia River ODMDS, under the MPRSA, 33 U.S.C. 1413, and its implementing regulations. This proposed rule is expected to be primarily of relevance to parties near the Mouth of the Columbia River seeking permits from the Corps to transport dredged material for the purpose of disposal into ocean waters at the MCR ODMDS, as well as the Corps itself. Potentially regulated categories and entities who may seek to use the proposed new ODMDS and would be subject to this Rule may include:

This table lists the types of entities that could potentially be regulated should the proposed rule become a final rule. EPA notes that nothing in this proposed rule alters the jurisdiction or authority of EPA or the types of entities regulated under the MPRSA. Questions regarding the applicability of this proposed rule to a particular entity should be directed to the contact person listed in the preceding FOR FURTHER INFORMATION CONTACT section. EPA anticipates that the Corps will be the primary, if not the only, user of the proposed ODMDS which are the subject of this rule.

Section 102 of the National Environmental Policy Act of 1969, 42 U.S.C. 4321, et seq., (NEPA) requires that Federal agencies prepare an Environmental Impact Statement (EIS) on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment. The object of NEPA is to build into agency decision-making processes careful consideration of all environmental aspects of proposed actions. While NEPA does not apply to EPA activities in designating ocean disposal sites under the MPRSA, EPA voluntarily prepared a joint EIS with the Corps. (See 63 FR 58045 (October 29, 1998), “Notice of Policy and Procedures for Voluntary Preparation of National Environmental Policy Act (NEPA) Documents.”) The Integrated Feasibility Report and Environmental Impact Statement for Columbia River Channel Improvements, dated August 1999 (Final IFR/EIS, 1999), considered the environmental aspects of new ODMDS site designations and improvements to the Mouth of the Columbia River (MCR) Project and the Columbia River navigation channel. The Final IFR/EIS (1999) resulted in selection of preferred alternative sites to propose for designation (see below). EPA also voluntarily joined with the Corps to prepare a Supplement to the Final IFR/EIS (SEIS) that was released in 2003. The SEIS addressed proposed changes in the Corp's Columbia River navigation channel improvements project, which could reduce the volume of material going to the ocean for that project, and describes ocean surveys conducted by the Corps and EPA since the Final IFR/EIS. These voluntary analyses have been beneficial in improving coordination with the Corps on related Columbia River navigation issues and in expanding public involvement on issues related to the siting and management of new ODMDS.

The federally authorized navigation projects for the Columbia River include maintenance of the MCR project (Final Environmental Impact Statement, Navigation Channel Improvements, Columbia River at the Mouth, Oregon and Washington, dated 1983), maintenance of the existing 40-foot navigation channel (Final Dredged Material Management Plan and Supplemental Environmental Impact Statement, dated 1998), and the potential construction and maintenance of the proposed navigation channel improvements as described in the Final IFR/EIS (1999). The navigation channel improvements project has been authorized and funded by the Congress.

The voluntary NEPA process followed by the EPA generally conformed to the guidelines developed by a joint task force of EPA and Corps personnel, the General Approach to Designation Studies for Ocean Dredged Material Disposal Sites (1984). A hierarchical framework that initially established the broadest economically and operationally feasible area of consideration for site location was utilized. A step-by-step sequence of activities was then conducted to screen possible sites. Evaluation of alternative sites (candidate sites) was based on factors such as the sensitivity and value of critical resources or uses at risk, and potential for unreasonable adverse impact presented by the dredged material to be disposed. The site-designation criteria, 40 CFR 228.5 and 228.6, were applied to the information assembled in this process, and sites were selected for consideration as preferred alternatives.

The process was structured into three major phases. Phase I included the delineation of the general area under consideration for locating a site and the identification and collection of the necessary information on critical resources, uses and physical and environmental parameters for the areas under consideration. After considering a reasonable distance of haul (the physical distance from the point an operating dredge picks up a load of material to the point where the material is disposed), a preliminary analysis, based on available data, was applied to identify and map areas of critical resources as well as areas of incompatibility for use as a disposal site. Such critical areas and resources included clustered areas of geographically limited habitats, fisheries and shellfisheries, navigation lanes, beaches, and marine sanctuaries. Phase II involved the elimination of sensitive and incompatible areas, the determination of additional data needs, and identification of candidate sites within the area based on the information collected and processed in Phase I. In Phase III the candidate sites were evaluated and sites were selected as preferred alternatives to propose for site designation. Management strategies were developed for the sites selected as preferred alternatives.

To provide input to the process, the Corps and EPA convened a facilitated Ocean Disposal Site Designation Working Group (Working Group). The purpose of the Working Group was to assist in identifying and evaluating the best long-term ocean option for the MCR and the existing Columbia River channel and proposed channel improvements projects. Representatives from state, local, and federal agencies participated in the Working Group as well as individuals representing the crab fishing industry and other interests. The Working Group assembled for a series of eight meetings between July 1997 and August 1998 and provided information for EPA and the Corps to consider in evaluating preferred alternative ODMDS. The Corps and EPA considered the information gathered by the Working Group, as well as new information gathered during the 5-year feasibility study for channel improvements, and historical information to identify three proposed sites in the Draft IFR/EIS (1998). The configurations of the sites included relatively shallow, high-energy areas deemed well-suited for active sediment movement away from deposition areas and back into coastal beach zones.

Numerous comments were received on the Draft IFR/EIS and the Corps and EPA sought additional input from the Working Group in meetings to discuss further refinements to the alternative site locations. Further discussion and meetings led to an evaluation for designation of a single shallow-water site and a single deep-water site to be used and managed in conjunction with a Clean Water Act Section 404 disposal site (North Jetty) in the area of the mouth of the Columbia River (Figure 2). These discussions were factored into the NEPA process. The NEPA process led to the current proposal that the four ODMDS sites designated in 1986 be proposed for de-designation and that the Shallow Water site and the Deep Water site be proposed for designation.

Modification in ODMDS use is governed by the Ocean Dumping Regulations at 40 CFR 228.11. Modifications which involve the withdrawal of designated sites from use are made through the promulgation of an amendment to the disposal site designation based on an evaluation of disposal impacts or upon changed circumstances concerning the use of the site. 40 CFR 228.11(a). By 1992, developing mounds created as a result of disposal actions at designated Sites A and B threatened to create hazardous conditions for large and small craft due to waves refracting from and breaking over and around the mounds. Discussions between EPA and the Corps concluded that an interim solution was needed that would allow the Columbia River federal navigation channel to remain open while studies were conducted to ascertain the extent of the problem, to develop and evaluate alternative solutions, and to prepare a longer term response. An interim plan was created, described in an environmental assessment (EA), supporting the temporary expansion of Sites A, B, and F under the Corps' Section 103 MPRSA authority while the Corps and EPA investigated a more permanent solution. In addition, EPA initiated a rulemaking process to modify the three sites and Site E to change the management at each site to restrict site use under Section 102 authority. A proposed rule was published in the Federal Register on September 21, 1992, at which time EPA stated: “While the current situation does not constitute an imminent hazard to life and property which would warrant an emergency response, EPA and the Corps are in agreement that prudent management action is required now in order to prevent such a situation from developing.” (57 FR 43428, September 21, 1992). EPA did not publish a final rule as changing conditions and new information regarding the sites indicated the need for further study and evaluation. Sites A, B, and F were temporarily expanded using Section 103 effective June 1, 1993, with EPA concurrence.

By 1995, Corps and EPA monitoring of disposal at the expanded Site F confirmed the agencies' suspicions that the site did not possess the capacity hoped for and possibly created new navigation conflicts with ocean vessel traffic. In addition, existing mounds at Sites A and B remained relatively stable rather than continuing to erode. Through 1996, EPA and the Corps re-evaluated the 1992 plan and ultimately developed a new approach that was presented in a 1997 EA. The new approach supported maximizing disposals at an Expanded Site E and a further expansion of Site B. The Corps temporarily expanded Site E and Site B under Section 103 MPRSA authority on June 19, 1997, with the concurrence of EPA. These expansions were immediately challenged by the Columbia River Crab Fishing Association (CRCFA) in a lawsuit which enjoined the use of Expanded Site B and resulted in a settlement agreement in 1998 disallowing the use of Expanded Site B and temporarily limiting the use of Expanded Site E. The limitation of use at Expanded Site E was based on CRCFA concerns that late summer disposal impacted “soft-shelled” crab (i.e., individuals that had molted their old shell and were buried up while the new shell hardens) in the westernmost third of the expanded site.

EPA observes that past activities at Sites A, B, and F place the sites in Impact Category II (40 CFR 228.10(c)(2) effects not categorized in impact category I). The size of the three sites renders impracticable the option of continuing even limited use of Sites A, B, and F and permanent expansion of the sites generates problems in terms of adverse wave conditions and conflicts with marine traffic. The determination of whether to terminate the use of a disposal site is based on the impact of disposal at the site itself and the Criteria for the management of disposal sites for ocean dumping. 40 CFR 228.11(d). Based on these factors, EPA proposes to de-designate Sites A, B, and F. Site E is proposed for modification through a de-designation of the existing site and a proposed designation of a new site, the Shallow Water site, which incorporates the existing site into a larger footprint. Site E is also placed in Impact Category II (other) based on its limited size, but not based on adverse wave conditions resulting from disposal or on conflicts with marine traffic.

The coordinates (North American Datum 1927: NAD 27) of the three existing EPA-designated sites proposed for de-designation (Figure 1) are as follows:

The coordinates (NAD 27) of the one existing EPA-designated site proposed for modification through new designation is as follows:

Two sites, the Deep Water and Shallow Water sites, are proposed for designation (Figure 2). A draft Site Management and Monitoring Plan (SMMP) has been prepared for the two proposed ODMDS sites and is available for review and comment by the public. (Copies may be obtained by request from the Further Information Contact listed in the introductory section to this proposed rule.) Use of newly-designated ODMDS would be subject to any restrictions included in the approved SMMP. Use restrictions will be based on a thorough evaluation of the proposed sites pursuant to the Ocean Dumping Regulations and potential disposal activity as well as consideration of public review and comment.

Deep Water Site. The proposed Deep Water site is a non-dispersive site (material placed at the site remains at the site) which consists of an inner “Placement Area” and a surrounding buffer. The overall site (Placement Area and buffer) has a rectangular dimension of 17,000 feet by 23,000 feet and occupies approximately 8,976 acres or 10.5 square nautical miles (sq nmi). The Placement Area (the inner box) has a rectangular dimension of 11,000 feet by 17,000 feet, occupying an area of approximately 4,293 acres or 5.0 sq nmi, which is surrounded by a 3,000-foot buffer zone. Direct disposal of dredged material would be allowed only within the Placement Area using “Drop Zones” specified in a SMMP. Material placed at the Deep Water site is expected to remain on site, eventually creating a fairly uniform mound approximately 40 feet in height. The coordinates (North American Datum 1983: NAD 83), dimensions, and depth of water of the proposed Section 102 site are as follows:

Shallow Water site. The proposed Shallow Water site is a dispersive site (material placed at the site leaves the site) and consists of a Placement Area on the sea bottom and a smaller, specified “Drop Zone” for dredged material disposal. Because the proposed site is dispersive, no buffer zone is specified for the Shallow Water site. The proposed Shallow Water site integrates the existing designated Site E, and expands the width and length of the site as described below. The Shallow Water Drop Zone is proposed to occupy the same location, with the same dimensions, as Expanded Site E and occupies approximately 531 acres or 0.626 sq nmi. The overall site and Placement Area occupies approximately 1,198 acres or 1.4 sq nmi. Site monitoring since 1997 demonstrated that material released within the boundaries of “Expanded Site E” temporarily deposited on the sea bottom as a truncated mound that was larger than the release area. While some of the placed material was dispersed out of the site and into the littoral system during direct disposal, the majority was eroded away to the north and northwest following the summer dredging season by the stronger winter waves and currents. Material placed at the Shallow Water site is expected to be transported out of the site during and following the dredging season and dispersed by natural ocean forces to the north and northwest and augment the littoral system. The coordinates (NAD 83), dimensions, and depth of water of the proposed Section 102 site are as follows:

Five general regulatory criteria are used in the selection and approval of ocean disposal sites for continuing use. See 40 CFR 228.5. Sites are selected so as to: minimize interference with other marine activities; keep temporary perturbations in water quality or other environmental conditions during initial mixing caused by disposal operations anywhere within the site to be reduced to normal or undetectable concentrations or effects before reaching beaches, shorelines, marine sanctuaries or known geographically limited fisheries or shellfisheries; terminate use as soon as a suitable alternate site can be designated if at any time disposal operations at a site cause unacceptable adverse impacts; limit the size of the site to localize for identification and to control any immediate adverse impacts and permit the implementation of effective monitoring and surveillance to prevent adverse long-range impacts; and wherever feasible to designate sites beyond the edge of the continental shelf and other such sites that have been historically used. Eleven specific criteria are used in evaluating a proposed disposal site to assure that the general criteria are met. See 40 CFR 228.6. The evaluations of the general and specific criteria, provided below, are based on information published in the 1983 and 1999 EISs and the 2003 Final SEIS, Corps and EPA Environmental Assessments for 103 Site expansions in 1993 and 1997, monitoring studies, data provided by fishery industry groups, crab data collected and evaluated by the Corps and EPA as part of the EIS and SEIS processes, a report produced by the Corps in studying potential wave-related effects at the proposed Shallow Water site, and supporting documentation.

The first of the five general criteria requires that a determination be made as to whether the site or its use will minimize interference with other uses of the marine environment. For this proposed rule, a determination was made to overlay individual uses and resources presented in the technical exhibits to the EIS and SEIS onto a base map containing the bathymetry and location of the proposed disposal sites. For purposes of assessing this criterion, EPA assumed that the more interactions between various uses and limited resources, the more critical the area's potential for interference. The overlay process was used to visually determine where maximum and minimum interferences with other uses of the marine environment could be expected to occur. The Shallow Water site and Deep Water site viewed against this criterion showed minimum interference with other activities. Both proposed sites avoid areas intensively utilized by the Dungeness crab fishery.

The second of the five general criteria requires that locations and boundaries of disposal sites be selected so that temporary changes in water quality or other environmental conditions during initial mixing caused by disposal operations anywhere within a site can be expected to be reduced to normal ambient seawater levels or to undetectable contaminant concentrations or effects before reaching beaches, shorelines, sanctuaries, or geographically-limited fisheries or shellfisheries. The proposed sites will be used for dredged material disposal of suitable sediments as determined by application of national and regional testing protocols (e.g., then-current Dredged Material Evaluation Framework). No significant contaminant or suspended solids releases are expected. Based on previous sediment testing and evaluations at the MCR by the Corps and EPA, disposal of either sandy or fine-grained material would not have any long-term impact on the water quality. No water quality perturbations will occur that could reach any beach, shoreline, marine sanctuary, or known geographically-limited fishery or shellfishery. Bottom movement of material deposited at the Shallow Water site is generally expected to show a net alongshore movement and will contribute to the existing littoral system. Material deposited at the Deep Water site is expected to stay in the Placement Area.

There are no interim sites to be considered under this criterion. Sites A, B, E, and F were designated on a final basis in 1986. The proposed Shallow Water and Deep Water sites are not interim sites as defined under the Ocean Dumping regulations.

The fourth general criterion requires that the sizes of ocean disposal sites be limited to localize for identification and control any immediate adverse impacts and to permit the implementation of effective monitoring and surveillance programs to prevent adverse long-range impacts. Size, configuration and location is to be determined as part of the disposal site evaluation or designation study. For this proposed rule, the IFR/EIS and SEIS were relied upon to determine size, configuration and location of the ODMDS to propose. The proposed Shallow Water and Deep Water sites have been sized to provide sufficient capacity to accommodate material dredged from the MCR federal project as well as future material from the improved Columbia River navigational channel. The sizing of the proposed sites has factored in the ability to implement effective monitoring and surveillance programs, among other things, to prevent mounding of dredged material which could result in adverse wave conditions as has been experienced at the originally designated sites and to ensure that navigational safety will not be compromised. Bathymetric surveys are planned as an important component of the SMMP. The results will be used to document the fate of the dredged material and provide information for management in the future to prevent adverse long-range impacts.

The fifth general criterion requires EPA, wherever feasible, to designate ocean dumping sites beyond the edge of the continental shelf and other such sites that have historically used. Potential disposal areas located off the continental shelf are at least 20 nautical miles offshore in water depths of 600 feet or greater, with the exception of the Astoria Canyon, which is 11 nautical miles offshore. The haul distance to an “off-shelf” disposal site is much greater than the 4.5 nautical mile average operational limit of the MCR project, making an off-shelf site not feasible for maintenance of the MCR project. The proposed Shallow Water site, if designated, will encompass the footprint of the historically used Site E, however, continued disposal in this area is desirable because the dredged materials are place into the nearshore littoral transport system, a system that functions with largely non-renewable quantities of sand in Oregon and Washington.

The proposed Shallow Water site would incorporate and appreciably expand the existing EPA-designated Site E and would include the Corps' 1997 selected Section 103 “Expanded Site E.” The site is located off the end of the North Jetty and would be 11,500 feet long and expand in width from 3,100 feet to 5,600 feet wide, encompassing a total area of 1,198 acres. The proposed site is located to the north of the Columbia River channel. The bottom topography slopes from the north to the south along the south side of Peacock Spit. Water depths in the proposed site range from 45 to 75 feet. Material placed at the Shallow Water site is expected to erode out, move north and northwest, and feed Peacock Spit.

The proposed Deep Water site would be located about 4.5 miles west of the entrance to the Columbia River navigation channel and extend westerly to about 7 miles west of the entrance. The bottom topography is featureless and gently slopes away from shore. Water depths at the proposed site range from about 180 feet to about 310 feet. Overall site dimensions proposed are 17,000 feet by 23,000 feet as an outer boundary (the Disposal Site including Buffer), that consists of an inner rectangle that measures 11,000 feet by 17,000 feet (the Placement Area) and which is surrounded on all sides by a 3,000-foot Buffer. The proposed site would encompass a total of 8,976 acres or 10.5 sq nmi. Disposal of dredged material would only be allowed within the inner rectangle (Placement Area), which has a total area of 4,293 acres or 5.0 sq nmi. EPA anticipates that material placed at this site would raise a stable mound approximately 40 feet high over the estimated 50 ± year life of the site. No direct disposal of dredged material would be allowed anywhere in the Buffer; however, dredged material sloughing off the developing mound or drifting during placement may extend into the Buffer zone. The Buffer zone will also serve as the “reference area” for site monitoring.

Many open-ocean nearshore organisms occur in the water column over the proposed Shallow Water site. These organisms include zooplankton (copepods, euphausiids, pteropods, and chaetognaths) and meroplankton (fish, crab and other invertebrate larvae). These organisms display a normal range of change in abundance by season. The populations at or near the proposed Shallow Water site are not unique to the proposed site. They are present over most of the coast. Overall coastal populations are not dependent on those located near the MCR. Based on zooplankton and larval fish studies, it appears that there will be no impacts to organisms in the water column.

Offshore areas (beyond the 200-foot depth contour) including the proposed Deep Water site, have consistently higher densities and numbers of benthic species (diversity) than nearshore shallower areas such as the proposed Shallow Water site. Therefore, placement of dredged material in the Deep Water site would be expected to have a greater impact to the benthic infaunal community than placement of dredged material in nearshore locations.

The proposed sites are located in an area off the mouth of the Columbia River which supports a variety of pelagic and demersal fish species as well as shellfish including Dungeness crab. Pelagic species include anadromous salmon, steelhead, cutthroat trout, striped bass, lamprey, smelt, herring, sturgeon, and shad that migrate through the estuary to upriver spawning areas. Juveniles of these species are present in the area following their migration out of the river or estuary into the ocean. Some remain in the nearshore area for various periods of time feeding and rearing, while others move directly offshore. Other pelagic species include the Pacific herring, anchovy, surf smelt, and sea perch. Surf smelt are in nearshore areas and in the estuary in large numbers during the summer. Demersal species present in the nearshore area include juvenile flatfish which rear in the area. Resident species occur in the offshore area throughout the year with many using the estuary as a rearing and nursery area. Species present include various flatfish, rockfish and other demersal fish.

Potentially, 30 cetacean species can occur along the coast although their numbers are generally limited. Harbor porpoises and gray whales are prevalent in shelf waters less than 600 feet deep. The larger cetaceans (whales) typically occur as migrants in the spring and fall, such as the California gray whale. Smaller cetaceans, principally dolphins, porpoises, and some small whales are also present. Five species of pinnipeds are known to occur along the coast: northern sea lion, California sea lion, harbor seal, northern elephant seal and northern fur seal. Harbor seals are resident whereas the four other species of pinnipeds are more transient in nature. Harbor seals and California/northern sea lions are the principal species observed in the estuary. All three species are known to forage within the estuary and adjacent ocean waters.

Four species of marine turtles (loggerhead, green, Pacific ridley, and Pacific leatherback) have been recorded from strandings along the coastline since 1982. Marine turtles are unusual in their occurrence along the Pacific Coast as they are typically associated with warmer marine waters.

Pelagic birds are extremely numerous in the offshore area. Studies have found that seabird populations were most densely concentrated over the continental shelf (less than 600 feet in depth). Shearwaters, storm petrels, gulls, common murres and Cassin's auklets numerically dominated the pelagic bird fauna from late spring through late summer. Phalaropes, fulmars, and California gulls are important constituents of the fall pelagic bird flocks. The principal species in the winter are phaloropes, California gulls, fulmars, other gulls, murres, auklets, and kittiwakes. Red-throated, Pacific and common loons occur as spring and fall migrants. Western, red-necked, horned, and eared grebes also occur in the area. Brown pelicans occur from late spring to mid-fall along the coast. This species forages in nearshore waters of the Pacific Ocean and estuarine waters of the Columbia River. Concentrations of up to 1,000 birds have been reported. Three species of cormorants and three species of terns occur and forage in nearshore Pacific Ocean waters and the estuary.

The federally listed threatened and endangered species which may occur within the area of the proposed sites include: listed salmon and steelhead stocks; blue, finback, sei, right, humpbacked and sperm whales; loggerhead, green, Pacific ridley, and Pacific leatherback sea turtles; northern (Steller) sea lion; marbled murrelet; bald eagle; Aleutian Canada goose; peregrine falcon; and brown pelicans. Occurrence of these species varies by season and location in the offshore area.

Disposal at both of the proposed sites is expected to result in the mortality of benthic organisms and some crabs as an immediate result of material burying organisms as it hits the ocean floor. Recolonization near the burial sites is expected. Disposal at the proposed Deep Water site is expected to have a greater, but not unacceptable, negative impact to the benthic community because of its higher benthic infaunal density and diversity relative to the proposed Shallow Water site. The density and diversity of benthic organisms at the proposed Deep Water site is expected to be changed by the point-dump disposals that will ultimately create the 40-foot mound. With respect to the other living resources that use the proposed Shallow Water and Deep Water sites, the sites are not being located in areas that are limited or that are unique breeding, spawning, nursery, feeding, or passage areas.

The proposed Shallow Water site would be located on the north side of the entrance channel in 45 feet to 75 feet of water. Most of the dredged material to be placed in the Shallow Water site is expected to move north onto Peacock Spit. Some material can be expected to move toward Benson Beach, or possibly back into the entrance channel. The Shallow Water site, as a dispersive site, has the potential to feed sand into the littoral system that nourishes the beaches. Material placed at the Shallow Water site probably does not directly nourish the beaches. The shoreward edge of the proposed Deep Water site would be located about 4.5 nautical miles off the beaches of Oregon and Washington in about 200 feet of water. Material placed at the Deep Water site is expected to create a mound of material that is not available to the littoral system and is lost to the beaches.

The sites that are proposed to be designated will receive dredged materials determined to be suitable for ocean disposal that are transported by either government or private contractor hopper dredges or ocean-going bottom-dump barges towed by tugboat. Both types of equipment release the material at or very near the surface. The majority of material expected to be disposed in the proposed sites is anticipated to come from Corps maintenance dredging of shoals in the MCR entrance channel federal project. These sediments consist primarily of marine sands transported into the entrance. The material is clean, contains no contaminants of concern in excess levels, is far removed from known sources of contaminants, and is suitable for open-water disposal. In the 1999 IFR/EIS, a smaller volume of material was anticipated to be dredged from the Columbia River navigation channel (RMs 3 to 29) for operation and maintenance purposes and the then-proposed channel improvements project and disposed in the ocean. That material was also evaluated and found suitable for unconfined open-water disposal. These sediments consist of sands with low percent of silts and clays or organic material. Modifications to the channel improvements project (identified and assessed in the SEIS, 2003) propose to beneficially use those sediments for Ecosystem Restoration projects within the estuary for approximately the first 20 years following construction of the improved channel. Should the Ecosystem Restoration projects identified not be built, those sediments would be proposed for ocean disposal. In addition, some fine-grained material from side channels or backwater areas may be placed offshore in the future which will require testing and evaluation and perhaps regulatory permitting.

Material to be disposed at the Shallow Water site is expected to be placed to promote dispersion and subsequent erosion back into the littoral system without generating mounds or other features which could interfere with navigation or reduce navigation safety. Site monitoring and management will be focused on that objective.

Material to be disposed of at the Deep Water site is expected to be point-dumped within Drop Zones so as to concentrate material (individually and cumulatively) from each dump. This placement is expected to help minimize bottom impacts to benthic organisms. However, placement at the Deep Water site is expected to result in the formation of an underwater mound that is different from the flat, gently-sloping bottom that presently exists. When the placement zone of the site is filled to capacity, it is expected to resemble an approximately trapezoidal mound about 40 feet high. Some material is expected to slump into the buffer zone from the created mound.

Current hopper dredges or ocean-going, bottom-dump barges available for use along the west coast dredging have capacities ranging from 800 to 6,000 cubic yards (cy). This would be the likely volume range of dredged material deposited in any one dredging-and-placement cycle. Clamshell dredges placing material into bottom-dump barges for transport to the ocean can work within the estuary and river, but not at the MCR project. Hopper dredges can and do work sections of the existing river navigation channel. The approximately 4.5 million cubic yards (mcy) estimated to be removed annually from the MCR, and 0.6 mcy of the improved Columbia River channel maintenance should channel materials be proposed for ocean disposal, can be placed at the sites in one dredging season by any combination of private and government dredges. The dredges or barges would be under power and moving during disposal, allowing the maintenance of steerage. The slurried dredged material is expected to exit from the hoppers within several minutes and rapidly descend to the seafloor where it will impact with the bottom and spread radially. Dredged material released at the Shallow Water site should reach the bottom within 10 minutes. Material released at the Deep Water site should reach the bottom in about 35 minutes.

Monitoring and surveillance are expected to be feasible at both proposed sites. The proposed Shallow Water site, in the nearshore zone, is readily accessible for bathymetric surveys. The proposed Deep Water site, 4.5 miles offshore and between 200 and 300 feet deep, has undergone monitoring, including side-scan sonar. If actual field monitoring of the disposal activities is required because of a future concern for habitat changes or limited resources, several research groups are available in the area to perform any required work. Most monitoring work for the proposed Shallow Water site can be performed from small, surface research vessels at a reasonable cost. Monitoring at the Deep Water site may be more complex than monitoring at the proposed Shallow Water site and is likely to require a medium or large vessel at greater cost.

Once the proposed sites are designated, monitoring shall be in accordance with the then-current SMMP. Revisions to the SMMP are expected; revisions will be circulated for public review, coordinated specifically with the affected States, and become final when approved by EPA Region 10. At a minimum, annual bathymetric surveys will be conducted in areas that receive dredged material. More frequent compliance surveys will be conducted during placement at the Shallow Water site to assure uniform placement is occurring. It is expected that off-site monitoring will be necessary at the proposed Shallow Water site, at least in the initial years of use. Routine monitoring for management purposes at the proposed Deep Water site are expected and will likely focus on determining how to concentrate single year disposals in the site and on verification that material is not placed in the buffer zone or escaping outside of the overall site. No routine off-site monitoring is anticipated for the Deep Water site.

The ocean entrance at MCR (including Peacock Spit to the north) is characterized by large waves and strong currents and is considered one of the world's most hazardous coastal inlets. The interactions of bathymetry, wind-generated waves, and ocean and river currents, are complex and the transition from coastal regime to oceanic is abrupt. The sea state at the river entrance during storm conditions is characterized by high swell incident from the northwest to southwest combined with locally-generated wind-waves from the south to southwest. During October-April, average wind-wave height is 9 feet and wave period is 12 seconds. During intense winter storms, however, waves can exceed 30 feet. During May-September, average wind-wave height is 5 feet and wave period is 9 seconds. Tides at MCR are mixed semi-diurnal, with a diurnal range of 8.5 feet. Currents, especially during ebb tidal flow cycles, can significantly worsen the hazardous wave climate even during low to moderate wind-wave conditions. At given locations, the velocity of the current has the greatest effect on wave height and wave steepness. This naturally dynamic condition enhances dispersal, horizontal transport and vertical mixing of the sediments as well as the water. This makes the area ideal for a dispersive disposal site, but extremely challenging to dredge and maintain navigation structures and for navigation of all sized vessels and craft.

The Columbia River estuary (from MCR to the Astoria Bridge) is a sink for marine (ocean) sediments, which enter through the mouth of the Columbia River. The estuary also effectively traps virtually all of the coarser fluvial (river) sediments. Finer fluvial sediments held in suspension are passed through the estuary to the ocean. ODMDSs for the MCR dredged material must be located to prevent the dredged material placed at the sites from returning directly into the entrance channel. This requires knowledge about the direction and rate of longshore transport as well as onshore/offshore transport.

Sediment movement in the marine littoral zone consists of two mechanisms that depend on sediment size. Sediments finer than sand remain in suspension in the water and are removed relatively quickly offshore. The almost total lack of clays and silts within the Columbia River mouth proper and the lower reaches of the Columbia River navigation channel attest to the efficiency of this mechanism. Sediments, sand size or coarser, may occasionally be suspended by wave action near the bottom, and are moved by bottom currents or directly as bedload. Tidal, wind and wave forces contribute to generating bottom currents that act in relation to the sediment grain size and water depth to produce sediment transport. Net transport for sand-sized material along the Oregon and Washington coast is to the north and northwest at a very slow rate. Sand placed in depths less than 60 feet can be mobilized by the combined forces of wave action and current and be transported within the littoral system.

Data available on prevailing current direction indicates that the prevailing current at the MCR is to the north and northwest. Current velocity varies seasonally and is greatest during ebb tide conditions. Sediments placed in the nearshore area, such as at the proposed Shallow Water site, appear to mix into the existing substrate. Movement of this material is expected to be in the direction of the prevailing current, to the north and northwest. This conclusion seems to be verified by monitoring conducted at the proposed Shallow Water site since 1997 and recent Corps' modeling studies.

The proposed Deep Water site is less influenced by the many dynamic interactions at MCR. Located at its closest point 4.5 miles from the entrance, dredged material placed on the sea bottom is at a depth where the prevailing currents are not expected to have any significant effects. Over time, as the mound accumulates, ocean currents, sloughing and consolidation of the material will tend to flatten the mound and distribute some of the placed material into the margins of the buffer. Sediments placed at Deep Water site are lost to the littoral system.

The proposed Deep Water site has not been used for disposal of dredged material. Designated Site E and Expanded Site E, which this rule proposes to incorporate into the footprint of the proposed Shallow Water site, have received varying quantities of dredged material, averaging about 3.5 mcy annually. Over the years, crab fishermen have reported some reduced harvest of crabs and loss of equipment at all designated ODMDS, including Site E, and expressed concern that disposal at Expanded Site E could contribute to adverse wave conditions. EPA and the Corps have studied the Site E and Expanded E in considerable detail. Recent computer modeling has not substantiated crab fishermen concerns relative to adverse wave conditions. Crab studies suggest that some crab mortality occurs as a direct result of the inability of a limited number of crabs to dig out from a burial by dredged materials. This effect is minimal relative to the crab resource and fishery at the MCR. Additional sampling of both the Deep Water Site and the Shallow Water Site was done in the late spring/early summer and fall of 2002. Preliminary results from these surveys are supportive of the earlier resource assessments (IFR/EIS 1999).

The historic record for the MCR suggests that between 1905 and 1940 approximately 8 mcy of sediment was dredged from the MCR bar and placed in open water by hopper dredge. Between 1945 and 1955, a total of approximately 13 mcy was dredged; while between 1956 and 1998, a total of 184 mcy has been dredged and placed in-water. The total volume of material dredged from the MCR channel between 1904 and 1998 is approximately 206 mcy. Beginning in 1977, placement of dredged materials from the MCR bar was limited to EPA designated “interim sites,” including Site E, which became “final sites” in 1986. Disposal was further limited as the final sites were used and effects were observed. The most pronounced cumulative effect of past disposal has been the development of mounds at designated Sites A and B. Mounding altered the bathymetry at these sites to the point that the wave climate in the area was affected.

Monitoring of benthic infauna has generally not shown any long-term effects due to the dredged material disposal. Oceanographic conditions are the driving factor in benthic infaunal productivity and diversity. The exception to this is lowered productivity on the crest of the mound in designated site B. Crab fishermen have also reported lower crab yields in the area of the mound at site B, which may be due to reduced productivity or the more difficult conditions for setting and retrieving crab pots. Crab pots have been buried or lost during dredged material disposal operations. Crab pot loss is not considered a cumulative, or significant, effect of disposal in the area.

Commercial and Recreational Fishing. Major commercial and recreational fishing occur in the offshore area. The predominant commercial fisheries are for salmon, Dungeness crab, bottomfish and pink shrimp. Salmon trolling and crab fishing are done over much of the nearshore area. The actual location and effort, however, varies from year to year depending on the abundance of fish or crabs, and resulting seasonal restrictions.

The principal recreational fishing occurring off the MCR is for salmon and bottom fish. Salmon fishing is done by charter boat and private boat and occurs near the same areas as commercial fishing, but generally closer to shore. Bottom fishing is conducted by charter and private boat for halibut, rockfish, and lingcod, which are generally associated with rocky areas. Other recreational activities include clamming in the bay and along the beach and fishing off the jetties. Dredging operations have not been identified as impacting any of these fishing activities. Crab fishermen have stated that disposal of material at the existing ODMDS, Site E, has affected their fishery by creating mounds which affect small boat navigation, or create a soft bottom condition which lets crab pots sink into the sediments making removal difficult, expensive or impossible. Crab pots have been damaged or lost due to burial when dredged material was placed on them or by the dredges snagging the buoy lines. The Corps has been and will continue to coordinate with the fishermen to minimize this impact. Crab fishermen have also expressed the concern that disposal kills crabs by smothering them or by changing the bottom habitat which may reduce the number of crabs available to catch.

In order to evaluate the impacts to individual crabs by dredged material disposal, the Corps contracted with Battelle NW Laboratories in Sequim, Washington and Scripps Institute of Oceanography in La Jolla, California. Because assessing these impacts during an actual disposal event could not be done in the ocean, it was decided to simulate disposal conditions in the laboratory. The tests at the Battelle Lab were done with recently molted soft-shelled crabs, which have the greatest potential for mechanical damage during a disposal event. The tests at the Scripps Lab were done using hard shell crab, since soft-shell crabs were not available.

Results of the limited testing are inconclusive. In all the tests done, no crabs appeared to be killed or injured by mechanical damage (all crabs removed from the sand mass were alive). The only mortality occurred when they did not dig out of the sand mass. Whether or not this behavior is typical of what occurs in nature is unknown. It seems unlikely, however, that organisms that live in an environment where they are constantly being buried under sand, such as at the mouth of the Columbia River, would have evolved a behavior that would result in their mortality. It seems more likely that the mortality associated with this behavior is an artifact of the testing and that the tests do not accurately represent the conditions that crabs experience in nature.

Crab population levels are affected by a variety of environmental and human factors, including but not limited to: upwelling patterns, onshore currents, wind and commercial fishing. Any of these conditions can have a devastating effect on population numbers in any year. Changes in oceanographic conditions during the larval stage can dramatically reduce survival and the number of adults. While some mortality of crabs could occur during an individual disposal event, only a small percentage of the population present and habitat available at the MCR would be affected by an individual disposal or repetitive disposal events. These mortalities and changes in habitat would be significantly less than mortalities and habitat changes which occur naturally. Additional sampling of both the Deep Water Site and the Shallow Water Site was done in the late spring/early summer and fall of 2002. Preliminary results from these surveys are supportive of the earlier resource assessments (IFR/EIS 1999).

Bathymetric monitoring will be done at and in the vicinity of the proposed Shallow Water site if it is designated. This information will be used by the Corps and EPA to manage placement of dredged material into the site. The proposed Shallow Water site would be located in an area that is dispersive, so while material will accumulate during active disposal, it is expected to be dispersed out of the site by the next dredging season (see also specific criteria 6). Disposal at the proposed Deep Water site will create a permanent mound; however, a mound height restriction and site monitoring and management will preclude interference with small and large vessel operation. The proposed Deep Water site is primarily within the towboat lane and should receive very limited commercial or recreational fishing use.

Dungeness crab are widely distributed throughout the nearshore area and fishing occurs in most areas north and south of the Columbia River mouth and out into deep ocean water (300+ feet). Throughout the site selection process, the crab fishermen identified specific areas that produce more income for their crab fishing effort. While these areas may not represent the cross-section of all fishermen operating out of the Columbia River, these identified areas were avoided to the extent practicable in the EPA's configuration of the proposed sites.

Mineral Extraction. There are known metallic mineral deposits in the area, principally black sands. While commercial extraction has been proposed and attempted in the past there are no known current proposals to mine offshore. There have been no exploratory wells drilled offshore near the mouth of the Columbia River. Clear conflicts with navigation and endangered species make it unlikely that production facilities would be permitted near the river's mouth or at any proposed site.

Desalination. There are no desalination plants in the area of the mouth of the Columbia River.

Fish and Shellfish Culture. There are no fish or shellfish culture operations in the area of the mouth of the Columbia River that would be affected by disposal of dredged material at any of the proposed sites.

Shipping and Other Legitimate Uses. Conflicts with commercial navigation traffic have been reported at the four 102/103 sites. In the past, disposal operations at Site F, where there was the greatest potential for conflict, were closely coordinated with the bar pilots. Similar coordination is expected to occur if the Deep Water site is used. The proposed Deep Water site is located in the towboat lanes and offshore of the Columbia Bar Pilots' exchange point. The potential for conflict with dredges and tug and barges transiting to the site are recognized but can be managed through coordination with the pilots, the Coast Guard, and others. While commercial navigation traffic is not an issue for the proposed Shallow Water site, placement at the site would be managed to avoid the creation of potential adverse wave impacts resulting from disposal operations, which could affect smaller boats transiting through the area. The proposed site would be located in an area immediately adjacent to an area that is subject to shoaling and breaking waves. Navigation in this area is known to be hazardous at all times based on natural conditions. Management at the proposed site would be focussed on not worsening the conditions at this naturally hazardous area.

Special Scientific Importance. There are no known transects or other scientific study locations that would be impacted by disposal at any proposed site.

Water and sediment quality analyses conducted in the study area and experience with past disposals in this region have not identified any adverse water quality impacts from ocean disposal of dredged material. The ecology of the nearshore and offshore areas is a Northeast Pacific mobile sand community. Neither the pelagic (mobile) or benthic (non-mobile) communities should sustain irreparable harm due to their widespread occurrence off the Oregon and Washington coasts.

Nuisance species are considered to be any undesirable organism not previously existing at the disposal site. They are either transported to or recruited to the site because the disposal of dredged material creates an environment where they can establish. It is highly unlikely that any nuisance species could be established at the proposed Shallow Water site given the dynamic energy at the site which is expected to discourage the establishment of species not currently adapted to high-energy conditions. Habitat conditions are expected to change somewhat at the proposed Deep Water site because it is expected that disposal of coarser materials will impact limited sections of the benthic communities currently established at the site. While it can be expected that organisms will become established at the site which were not there previously, it is unlikely that this new community would be regarded as a nuisance, or “undesirable,” community.

Due to the proximity of the proposed Shallow Water site to the Columbia River channel, the cultural resource that has the greatest potential for impact would be shipwrecks. The most likely areas for shipwrecks would be in the shallow breaker zone and the mouth of the Columbia River entrance. Wrecks within these areas would likely have been torn apart due to the high-energy climate. At or near the proposed Deep Water site wrecks are less likely; however, the deeper water would buffer the high-energy wave climate and thus make shipwrecks there less prone to damage. Shipwrecks in deeper water would tend to have more cultural value than shipwrecks nearshore. Undiscovered wrecks could occur in the area. Sidescan sonar surveys of the Deep Water Site have been conducted which should have identified any potential shipwrecks. None were identified. As additional sidescan sonar surveys are conducted in the future, and if potential shipwrecks are identified, EPA will require or undertake appropriate follow up action. No natural or cultural features of historical significance have been identified at either site proposed for designation in this rule.

The proposed action evaluated through this proposal is the proposed designation under Section 102(c) of the MPRSA of the Shallow Water and Deep Water sites. The primary purpose of the proposed designations is to provide environmentally acceptable locations for ocean disposal of dredged materials from Columbia River navigation projects. The evaluative processes, voluntary NEPA and an analysis of site suitability based on an assessment of the regulatory criteria, provide a thorough and objective evaluation and the information necessary to determine the suitability of an ocean disposal area for site designation. EPA's proposed site designation is being conducted in accordance with the MPRSA, the Ocean Dumping Regulations, and other applicable Federal environmental legislation and policy.

Ocean disposal site designation does not constitute or imply EPA's or the Corps' approval of ocean disposal of dredged material from any project. Before disposal of any dredged material at newly designated ODMDS may occur, EPA and the Corps must evaluate the proposed project according to the ocean dumping regulatory criteria (40 CFR part 227). EPA and the Corps will not allow ocean disposal of dredged material at newly designated ODMDS if either agency determines that the dredged material does not meet the ocean dumping regulatory criteria. The Corps is required to evaluate all proposed dredging projects associated with Columbia River dredged materials in accordance with all applicable Federal law, e.g., the Magnuson-Stevens Fishery Conservation and Management Act, the Coastal Zone Management Act, and the Endangered Species Act.

This proposed action also proposes to de-designate, pursuant to 40 CFR 228.11, three ODMDS, Sites A, B and F, originally designated by EPA in 1986. The sites are proposed for de-designation because use of the sites for disposal of dredged materials resulted in mounding of disposal materials. The resulting mounds threatened to create hazardous conditions for large ships and small craft due to waves refracting from and breaking over the mounds. A fourth ODMDS, Site E, as currently designated, inhibits the ability to minimize interference with other activities in the marine environment. This rule proposes to modify Site E pursuant to 40 CFR 228.11 by designating a new site, the Shallow Water site which would incorporate the 1986-designated Site E and appreciably expand it. This rule does not propose to impact sites selected by the Corps under the authority of Section 103 of the MPRSA. Those sites will terminate based on the requirements of Section 103.

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

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

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

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

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

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

The Paperwork Reduction Act, 44 U.S.C. 3501, et seq., is intended to minimize the reporting and record-keeping burden on the regulated community, as well as to minimize the cost of Federal information collection and dissemination. In general, the Act requires that information requests and record-keeping requirements affecting ten or more non-Federal respondents be approved by OPM. Since the proposed Rule does not establish or modify any information or record-keeping requirements, it is not subject to the provisions of the Paperwork Reduction Act.

The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), ), 5 U.S.C. 601 et seq., generally requires Federal agencies to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business, as codified in the Small Business Size Regulations at 13 CFR part 121; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. EPA has determined that this action will not have a significant impact on small entities because the proposed ocean disposal site dd-designations and designations will only have the effect of providing environmentally-acceptable and safe for marine traffic disposal options for dredged materials on a continuing basis. After considering the economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Although this proposed rule will not have a significant economic impact on a substantial number of small entities, EPA nonetheless has tried to reduce the impact of this rule on small entities. EPA's proposed ocean disposal site designation considered input from small entities in determining where to propose site locations and in sizing sites to reduce any potential impacts. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts.

Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. L. 104-4) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any year. Before promulgating an EPA rule for which a written statement is needed, Section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule, the provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why the alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

This proposed rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local or tribal governments or the private sector. It imposes no new enforceable duty on any State, local or tribal governments or the private sector. Similarly, EPA has also determined that this proposed rule contains no regulatory requirements that might significantly or uniquely affect small government entities. Thus, the requirements of section 203 of the UMRA do not apply to this rule.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among various levels of government.”

This proposed rule does not have federalism implications. 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 various levels of government, as specified in Executive Order 13132. This proposed rule addresses the designation of sites near the Columbia River suitable for disposal of dredged materials. Once designated, persons seeking to use the sites must obtain a permit. Thus, Executive Order 13132 does not apply to this rule. Although Section 6 of the Executive Order 13132 does not apply to this proposed rule, EPA did consult with representatives of State and local governments in developing this rule.

In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed rule from State and local officials.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed rule does not have tribal implications, as specified in Executive Order 13175. The rule proposes to designate ocean disposal sites pursuant to section 102 (c) of the MPRSA for use as dredged material sites and does not establish any regulatory policy with tribal implications. Thus, Executive Order 13175 does not apply to this proposed rule. EPA specifically solicits additional comment on this proposed rule from tribal officials.

Executive Order 13045 applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This proposed rule is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866 and because the Agency does not have reason to believe the environmental health or safety risks addressed by this proposed action present a disproportionate risk to children. The proposed rule concerns the designation of ocean disposal sites and would only have the effect of providing designated locations to use for ocean disposal of dredged material pursuant to section 102 (c) of the MPRSA.

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

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTAA”), Public Law No. 104-113, 12(d) (15 U.S.C. 272) 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 bodies. The NTAA directs EPA to provide Congress, through the OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards. EPA welcomes comments on this aspect of the proposed rulemaking and, specifically, invites the public to identify potentially-applicable voluntary consensus standards and to explain why such standards should be used in this regulation.

To the greatest extent practicable and permitted by law, and consistent with the principles set forth in the report on the National Performance Review, each Federal agency must make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health and environmental effects of its programs, policies, and activities on minority populations and low-income populations in the United States and its territories and possessions, the District of Columbia, the Commonwealth of Puerto Rico, and the Commonwealth of the Mariana Islands. Because this proposed rule addresses ocean dumping (away from inhabited land areas), with no anticipated significant adverse human health or environmental effects, the rule is not subject to Executive Order 12898.

For the reasons set out in the preamble, chapter I of title 40 of the Code of Federal Regulations is proposed to be amended as set forth below:

NMFS published a notice of receipt of petition for rulemaking in the April 18, 2002, Federal Register (67 FR 19154) and invited public comments for 30 days ending June 17, 2002. In response, NMFS received 31 letters from different interest groups including Regional Fishery Management Councils (RFMCs), the Commonwealth of the Northern Mariana Islands, various commercial fishermen and fisheries organizations, environmental groups, and other interested individuals. Also, NMFS received tens of thousands of letters of similar content and petitions from interested members of the general public. Summaries of and responses to comments are provided under Public Comments below.

The petition sought rulemaking on “bycatch,” which it refers to as “the incidental catch of birds, mammals, turtles, and fish.” The petition cited specific legal responsibilities of NMFS for bycatch under the MSA, ESA, MMPA and MBTA, and concluded that NMFS must count, cap, and control bycatch. The petition stated that NMFS must monitor and report bycatch of seabirds that occurs in fishing operations and take steps to reduce seabird bycatch.

For the MSA and related regulations and Federal Court interpretations, the petition cited national standard 9 and other requirements for minimizing bycatch and related mortality, including the requirement to establish a standardized reporting methodology to assess the amount and type of bycatch occurring in a fishery. The petition concluded that any Federal Fishery Management Plan (FMP) or regulation prepared to implement an FMP must contain measures to minimize bycatch in fisheries to the extent practicable and argued that greater observer coverage is required.

For the ESA, the petition cited the prohibition on taking endangered species and protection of threatened species, including recovery plans to guide regulatory efforts, as well as consultation requirements and incidental take statements.

For the MMPA, the petition cited requirements for a regulatory system to avoid and minimize takes of marine mammals reducing mortality or serious injury to insignificant levels, as well as take reduction plans and monitoring of marine mammal takes.

For the MBTA, the petition cited the prohibition on taking any migratory bird, including seabirds, except as permitted by regulations issued by the Department of the Interior, and cited Federal case law and Executive Order 13186 as requirements that NMFS ensure that fishery management plans (FMPs) comply with the MBTA. The petition also referred to the NMFS-issued National Plan of Action for reducing seabird bycatch and the need to prepare a national seabird bycatch assessment.

The exact and complete assertions of nonconformance with Federal law are contained in the text of Oceana's petition which is available via internet at the following NMFS web address: http://www.nmfs.noaa.gov/bycatch.htm. Also, a copy of the petition may be obtained by contacting NMFS at the above address.

The petition specifically requested that NMFS immediately undertake a rulemaking to meet its obligations under the above statutory authorities and that such rulemaking include the following four actions:

“1. Develop and implement a workplan for placing observers on enough fishing trips to provide statistically reliable bycatch estimates in all fisheries. This task involves several steps (taking into account the diversity of vessel category, gears used, and fishing region): (a) determining how many fishing trips must be observed, where observers should be stationed, and other details; (b) identifying funding sources to support such observer coverage, including taxpayer subsidies, taxing landings or user fees; and (c) hiring, training, and deploying the necessary observers.

“2. Incorporate reasonable estimates of bycatch into all total allowable catch levels and other restrictions on fishing.

“3. Set absolute limits on the amount of directed catch and bycatch (including non-fish bycatch) that can occur in each fishery, and close the fishery when the applicable catch or bycatch limit (whichever is reached first) is met.

“4. Within 12 months of initiating rulemaking, develop, approve, and implement bycatch assessment and reduction plans for commercial and recreational fisheries. Such plans should include, at minimum, (a) an assessment of the fishery according to its bycatch, including its types, levels, and rates of bycatch on a per-gear basis and the impact of that bycatch on bycaught species and the surrounding environment; (b) a description of the level and type of observer coverage necessary accurately to characterize total mortality (including bycatch) in the fishery; (c) bycatch reduction targets and the amount of directed and bycatch mortality allowed in each fishery to meet the target; and (d) types of bycatch reduction measures (such as closed areas, gear modifications, or effort reduction) that will be employed in the fishery, including incentives for those who use gears that produce less bycatch. Beginning 12 months after rulemaking commences, NMFS should not permit fishing in any fishery that lacks a functioning bycatch plan.”

Thousands of letters of similar content and petitions from interested members of the general public expressed concern about “the senseless destruction of ocean life caused by wasteful fishing” and the failure of government to enforce four Federal laws (MSA, ESA, MMPA, MBTA) to reduce bycatch. Most urged the enforcement of law and the placement of observers on fishing vessels to monitor bycatch. These letters and petitions also urged near-zero levels of bycatch for all marine life. We acknowledge these comments and have given them due consideration in formulating this notice of decision.

Of the remaining 31 letters: 21 commenters urged that the petition should be rejected or denied; 2 commenters provided mixed comments on the petition; and 8 commenters supported the petition to count, cap, and control bycatch. Most of these commenters noted that there is an existing MSA process that should be used for rulemaking, that this process includes RFMCs, and that a global, national rulemaking is inappropriate. Some noted that the petition failed to acknowledge what NMFS and RFMCs have done and are doing to minimize bycatch. Many commenters specifically addressed the points of incorporating bycatch estimates into total allowable catches (TACs) and establishing quotas or absolute limits on catch and bycatch.

Other key points made by commenters included: observer programs are not needed for all fisheries; there should be selection criteria; and high priority fisheries should get observers. Several commenters noted that NMFS and RFMCs need a bycatch planning process. Others referred to seabird bycatch and seabird avoidance measures. Two commenters supported the call for a coordinated effort at a national level to standardize protocols for observers. Another commenter emphasized that bycatch is an international issue and urged NMFS to set an example on bycatch conservation goals. Commenters also expressed the need to make funding available for observer programs and bycatch programs.

Responses to the specific points of the 31 letters are provided below, organized under the four headings corresponding to the four main components of the bycatch petition.

Comment 1: Several commenters stated that bycatch is either nonexistent or extremely uncommon in certain fisheries such as in the Commonwealth of the Northern Marianas Islands or in the spiny lobster fishery of the Gulf of Mexico (i.e., 7 dead fish in 21,000 trap observations). These commenters expressed that while some level of coverage may be valuable in certain fisheries such as the Gulf of Mexico shrimp fishery, any requirements for an observer program for those fisheries in which bycatch has been determined not to be a problem is onerous and costly with no added benefit.

Response: NMFS recognizes that certain fishing gears and configurations are more selective than others. Nonetheless, fisheries must be assessed at some level, using observers or other bycatch assessment methods, to determine whether there is a bycatch problem. NMFS uses logbook information, existing information on gear selectivity, distribution and abundance of fish and protected resource populations, and bycatch information in other similar fisheries to make preliminary evaluations of potential bycatch in unobserved fisheries. These preliminary evaluations are used by NMFS, and the RFMCs where appropriate, to determine whether observer placement in these fisheries is warranted, and at what levels. NMFS will be developing a national approach to a standardized bycatch reporting methodology as noted under the NMFS National Bycatch Strategy section below. A national in-house working group will evaluate the current methodologies for estimating bycatch, review the current use of self-reporting to estimate discards, evaluate the potential for estimating discards by inferences drawn from fishery independent surveys, recommend a statistical design for observer programs to cover all U.S. fisheries, recommend standards of precision to be achieved for discard estimates, and recommend observer sample sizes and associated costs for all U.S. fisheries.

Comment 2: Another commenter objected to the petition's request for requiring observers on all U.S. fleets regardless of whether there is bycatch and for requiring a statistically reliable estimate of bycatch within a 1-year time period, which would necessitate, in some cases, well in excess of 20 percent observer coverage. The commenter explained that this would be costly, unnecessary, inefficient, and devastating to fishermen.

Response: The bycatch petition does not request observers on all fleets, but instead, calls for a workplan for placing observers on enough fishing trips to provide statistically reliable bycatch estimates in all fisheries. NMFS, in collaboration with RFMCs, evaluates and addresses the problems of bycatch on a fishery-by-fishery basis. In some cases, this involves deploying observers in certain fisheries. In other cases, because observer coverage is not possible, new methods must be devised to assess bycatch. This is an ongoing process, as part of the fishery management process, and we recognize that a 1-year time frame for collecting statistically reliable bycatch estimates by deploying observers in all fisheries is unrealistic, and, for some fisheries, unwarranted. The development by NMFS of a national approach to a standardized bycatch reporting methodology will help in determining what is needed in individual fisheries.

Comment 3: One commenter indicated that the Atlantic Coast Cooperative Statistics Program's (ACCSP) “Release, Discard, and Protected Species Interactions Monitoring Program Module” is in use on the Atlantic Coast and that it represents an adequate process for bycatch monitoring and collection standards.

Response: NMFS agrees that the goals and protocols of the ACCSP bycatch monitoring program, establishing the preferred methodology to collect data and estimate bycatch, are well defined and scientifically reliable. Once funded and implemented in all Atlantic fisheries, this should provide extremely valuable data and will be an effective tool for estimating bycatch.

Comment 4: While concurring that observers are an effective method for gathering detailed information on fishing activities, one commenter asserted that such programs may present logistical difficulties (small vessels, rare events) and may not be the best way to assess bycatch in “all” fisheries. The commenter urged NMFS not to rush to implement a comprehensive observer program for every fishery, but rather to consider a more strategic approach. The commenter also stated that observer programs should be prioritized by existing information demonstrating the need for observer coverage.

Response: NMFS agrees that observers are effective in many fisheries but are not appropriate in all fisheries. NMFS, in collaboration with RFMCs, evaluates and addresses the problems of bycatch and the need for observers on a fishery-by-fishery basis. The development of a national approach to standardized bycatch reporting methodology is discussed below in the NMFS National Bycatch Strategy section. In fisheries that NMFS determines are not appropriate for observer coverage, NMFS works with the RFMCs to implement alternative methods to assess bycatch in fisheries. Also, NMFS recently has developed long-term budget initiatives for observer programs, including research into observer programs for small vessel coverage. This includes the testing of digital cameras strategically placed onboard vessels to monitor fishing activities and catch.

Comment 5: One commenter indicated that the North Pacific Fishery Management Council (NPFMC) and NMFS already have an observer program in place, stating that, while the program can be improved, such improvements must come from incremental changes as more information becomes available.

Response: NMFS agrees that the observer program in place for monitoring North Pacific groundfish fisheries has benefitted from changes implemented as new information and resources have become available. However, observer programs have not been implemented for all U.S. fisheries. The National Observer Program, a relatively new program within NMFS headquarters, is charged with facilitating the exchange of information and experiences between programs to facilitate the implementation of new programs and to improve the efficiency and effectiveness of existing observer programs.

Comment 6: Several commenters indicated that the NPFMC already has a functioning observer program for the North Pacific groundfish fishery that is large scale, mandatory, and industry-funded. At least one of these commenters indicated that as a result, the NPFMC has an observer-generated data base from which to evaluate catch and bycatch mortality levels in those sectors of the fleet that account for virtually all of the groundfish landings in the Bering Sea and Aleutian Islands and a large part of the landings in the Gulf of Alaska.

Response: NMFS agrees that industry funding of the North Pacific Groundfish Observer Program (NPGOP) has resulted in comprehensive coverage of North Pacific groundfish fisheries. The data collected by observers are critical to the management of these fisheries. NMFS is working with the NPFMC to review current funding mechanisms and coverage levels in the NPGOP. This review is focused on ensuring that funding mechanisms and coverage levels continue to address the need for collection of high quality catch and bycatch data to support management decisions.

Comment 7: Several commenters supported the development and implementation of an observer workplan, with consistent and adequate coverage as necessary to provide more reliable bycatch estimates and facilitate sound management. Commenters noted that unreliable bycatch estimates can undermine stock assessments and impede rebuilding efforts, and that restrictive management regimes based on flawed data may economically destroy fisheries.

Response: For fisheries where observer coverage is needed to monitor bycatch, NMFS agrees that a level of coverage should be deployed that provides statistically reliable bycatch estimates. Because the need for coverage will vary from fishery to fishery, NMFS is undertaking a national review of coverage levels in the coming year to evaluate current mechanisms used for estimating appropriate coverage levels, and to determine the most appropriate statistical methodologies upon which to base sample size determinations. This review will be used in the refinement of future initiatives to address funding for observer programs. This review will also support the development of a national plan for NMFS observer programs, where needs for observer coverage to monitor bycatch will be outlined on a fishery by fishery basis.

Comment 8: One commenter supported a national work plan for observer placement that would include: hiring standards; coordination with states; maximum data collection regardless of the statutory authority; adequate support for observers; well-defined objectives and goals for each observer program; data quality and assurances; strong scientific sampling design; annual evaluations; and giving NMFS sole authority to make all decisions in regards to observers (i.e., RFMCs should not be involved in sampling design).

Response: NMFS agrees that a national plan for NMFS observer programs is important to address the commenter's concerns, and has initiated development of this plan. Historically, NMFS observer programs have operated independently in each region with little opportunity for exchange of information and with minimal guidance on the development of standardized operating procedures. With the establishment of the National Observer Program in 1999, NMFS has begun to address many issues critical to the effective deployment of observers nationwide, such as program goals and objectives, safety standards for observed vessels, hiring standards and wages for observers, vessel liability, observer compensation in the event of an injury, authorities to collect observer data, and options for industry funding of observer programs. As part of the agency's implementation of the Fisheries Information System, the National Observer Program has also begun to address issues to improve overall data integrity, such as coordination with states and RFMCs, sampling design and data quality, observer coverage levels, integration of observer data with other fisheries data, data confidentiality, electronic data entry, and improved access to observer data. The National Observer Program will be drafting the national plan for NMFS observer programs in the coming year, in cooperation with each regional NMFS observer program, RFMCs, the states, and the state fishery commissions.

Comment 9: Another commenter supported a workplan, but expressed that observers may not necessarily be required in all fisheries if other reliable and accurate methods of assessing bycatch are available. The commenter suggested that NMFS prioritize which fisheries require observers to obtain accurate bycatch data and determine the level of coverage needed.

Response: NMFS agrees and is working towards this. Current efforts include research into alternative methods for collection of bycatch data, such as the use of video cameras and other means of electronic monitoring, and identification of fisheries with the highest priority for observer coverage. As discussed below, NMFS will be developing a national approach to standardized bycatch reporting methodology.

Comment 10: Commenters asserted that without the immediate implementation of a plan to count, cap, and control bycatch, including the implementation of an observer workplan, our oceans remain at risk from wasteful fishing practices.

Response: NMFS continues to work nationally and internationally to reduce bycatch. A wide variety of measures are already in place to monitor and reduce bycatch in numerous fisheries. Bycatch data from observers are used to develop and implement gear improvements and management measures to reduce bycatch. NMFS will continue to work on identifying fisheries for which bycatch is occurring, and furthering strategies for better estimating and reducing bycatch.

Comment 11: One commenter supported the development of a workplan for observer placement and suggested that NMFS should: devise a more effective system for observer deployment than the “lottery” system currently in place in the West Coast groundfish fishery; establish minimum standards at the national level for safety, hiring, sampling, and data integrity; require critical evaluation of observer sampling methods and heighten concern for data integrity; and improve constructive communication between observers, NMFS, and Pacific States Marine Fisheries Commission employees.

Response: Same response as to Comment 8.

Comment 12: One commenter asserted that the universal implementation of observer programs is not practical for fishing vessels in the Western Pacific, as the majority of the fleet are small, 1-3 person vessels. The commenter also indicated that the deployment of observers on Hawaii longline vessels has permitted an evaluation of the accuracy of logbook records, and has led to a method whereby catch estimates can be generated from logbook data in the absence of observers. The commenter indicated that observer-validated logbooks and survey interceptions at landing sites should not be dismissed as alternate ways of monitoring bycatch.

Response: Non-biased observer data collection in the majority of instances is the most effective way to monitor bycatch, particularly of protected species, in order to obtain accurate data. Nonetheless, NMFS acknowledges that observer data are not the only way to monitor bycatch. More cost effective alternatives need to be developed and considered and may prove to be just as effective, depending upon the purpose. Electronic monitoring, self-reporting (logbooks), and/or dockside sampling may be viable alternatives to observers in some fisheries. For example, in small vessel fisheries electronic monitoring may be a viable alternative to observers; in other fisheries, technology may be used to augment observer data. A national approach to standardized bycatch reporting methodology will be useful in evaluating needs of individual fisheries.

Comment 13: One commenter recommended that NMFS should identify statistically significant levels of observer coverage necessary to obtain reliable estimates of the problem, and require each RFMC to develop, within a year, a draft plan that would include a standardized bycatch reporting methodology.

Response: NMFS continues to work with RFMCs and others to identify appropriate levels of observer coverage in fisheries where bycatch is a significant problem, and to implement bycatch reporting methodologies. Developing a more rigorous and “standardized” reporting methodology for all fisheries will require substantially higher levels of funding for the RFMCs and NMFS (particularly for observers and data analysis) and greater cooperation by industry where voluntary measures have failed. Detailed administrative records are needed to comprehensively assess bycatch reporting methodology and any adverse impacts from fishing practices. NMFS will evaluate current methodologies for reporting bycatch and costs, among other things, as it develops a national approach to a standardized bycatch reporting methodology as part of its continuing efforts to reduce bycatch.

Comment 14: One commenter indicated that the at-sea Pacific whiting fleet in the North Pacific and the whiting fishery on the west coast have had bycatch avoidance plans in effect that are among the most sophisticated and effective of any in the world. Further, the commenter pointed out that observers in this fishery are not required by regulation; the fleet voluntarily carries these observers at their own expense.

Response: NMFS recognizes the effectiveness of the voluntary at-sea Pacific whiting fleet observer program, and the contributions of the industry to the success of this program and to the low levels of bycatch associated with this fishery.

Comment 15: One commenter indicated that while the development of an observer workplan is desirable, it is unreasonable to request that such a plan be implemented without a known source of funding. The commenter asserted that the petitioners would be more productive if they influenced Congress to fund the existing mandates of the MSA, at which time NMFS and the RFMCs and the states could collaborate on development and implementation of such a workplan.

Response: NMFS has and will continue to develop budget initiatives to address needs for observer coverage in currently unobserved or under-observed fisheries. Funding for observer programs has been a priority for both the agency and Congress, as reflected in increased funding levels for observer programs from approximately $8 million in 1999 to approximately $21 million in 2002. In addition, NMFS is exploring alternative mechanisms for funding of observer programs, and the statutory authority to implement these alternative funding mechanisms. Authority for industry funding of observers under the MSA (section 313) currently exists only for fisheries managed by the NPFMC.

Comment 16: Another commenter asserted that the fisheries in the North Pacific are subject to the most comprehensive observer coverage of any fishery in existence. The commenter stated further that, based on scientific advice the NPFMC has received, the accounting measures in place in the North Pacific fisheries more than adequately account for and monitor catch and bycatch in the groundfish and crab fisheries.

Response: NMFS agrees that the North Pacific Groundfish Observer Program has one of the most comprehensive levels of observer coverage, and the data collected by observers are critical to monitoring of catch and bycatch. NMFS implemented a similar level of coverage for purse seine vessels in the Eastern Tropical Pacific to monitor the effectiveness of measures to mitigate takes of marine mammals.

Comment 17: One commenter expressed opposition to short-term observer requirements that exceed a scale that NMFS could reasonably be able to implement. The commenter indicated that effective observer programs are difficult to design when a fleet is comprised of many different types of vessels with many different fishing strategies, including many small vessels that operate with only one or two crew members and when staffing is problematic. Further, the commenter stated that increased information from observer programs is only useful to the extent that NMFS has a system in place to integrate that information into fisheries management decisions in an efficient and timely way. Also, the commenter suggested that imposing user fees to defray observer costs fails to acknowledge the slim profit margins on which certain sectors of the U.S. fishing fleet already operate. The commenter believed that these issues explain why observer programs are discretionary rather than mandatory elements of FMPs.

Response: NMFS understands the difficulties involved in designing and implementing effective observer programs, particularly when resources are limited and/or vessels vary considerable in size and ability to accommodate an observer. The NMFS National Observer Program has been working in cooperation with each regional observer program to develop standards for monitoring small vessels, including research into alternative monitoring technologies. For North Pacific fisheries, NMFS has fully integrated observer data into monitoring of TACs and bycatch mortality while the fishery is being conducted. NMFS is implementing methods to ensure greater and more timely access to and use of observer data by NMFS scientists and managers through the implementation of the Fisheries Information System. NMFS is also exploring alternative mechanisms for funding of observer programs, and the statutory authority to implement these alternative funding mechanisms, as mentioned in previous responses.

Comment 18: One commenter stated that it is essential to assess bycatch for all protected species recovery plans and FMPs, and assess the impact of bycatch on marine food webs.

Response: NMFS agrees that the assessment of bycatch and its effect on the ecosystem should be an important element in FMPs and protected species recovery plans. Indeed, the ESA is founded upon the concept that listed species and their critical habitat must be conserved to recover endangered and threatened species. For this reason, ESA recovery plans contain detailed site-specific management actions necessary to address ongoing threats, such as bycatch in fisheries.

Comment 1: One commenter indicated that adjustments to TACs based on bycatch information are already being made by NMFS analysts who do stock assessments on stocks for which the Gulf of Mexico RFMC and NMFS set TAC. The commenter stated that the levels of fish discarded alive are adjusted by the current estimates of post-release mortality, which are 10 percent to 20 percent for recreational fish that are discarded and 33 percent for commercially discarded fish. These portions of the discarded fish are considered as additional mortality (part of the TAC) in the assessments.

Response: NMFS works with RFMCs to factor bycatch into the setting of fishery TACs or harvest guidelines.

Comment 2: One commenter concurred that “reasonable” estimates of bycatch should be used when setting TACs and indicated that the Pacific RFMC/NMFS harvest mortality monitoring and control system distinguishes between bycatch and bycatch mortality and expressed the view that these estimates have been reasonable.

Response: NMFS agrees that reasonable estimates of bycatch mortality should be used when setting TACs.

Comment 3: Several commenters indicated that the NPFMC counts bycatch of groundfish and crab species (whether retained or not) against the applicable TACs for these species and stated that such bycatch is generally not considered a biological problem.

Response: NMFS believes it is appropriate to apply both retained and discarded bycatch in this fishery against TAC levels. NMFS MSA regulations at 50 CFR 600.310(f)(4)(iii) specify that “All fishing mortality must be counted against OY [optimum yield], including that resulting from bycatch, scientific research, and any other fishing activities.”

Comment 4: One commenter indicated that the Mid-Atlantic RFMC incorporates bycatch estimates into all TAC levels for all species it manages and supports requiring bycatch estimates to be incorporated into TACs.

Response: NMFS agrees with the incorporation of estimates of bycatch into TACs.

Comment 5: One commenter suggested incorporating all sources of mortality, including bycatch, into stock assessments and when establishing TACs.

Response: NMFS incorporates bycatch data, when available, into stock assessments and into setting TACs as stipulated in various FMPs or FMP regulations, and NMFS operational guidelines.

Comment 6: One commenter opposed a mandatory requirement to incorporate estimates of bycatch into all TACs and other restrictions on fishing stating that sufficient data do not exist to do this for most fisheries. The commenter expressed opposition to such a requirement until such time as the bycatch monitoring mandates of the MSA are funded and are given time for a sufficient body of data to be developed upon which to base such estimates.

Response: NMFS supports the inclusion of bycatch estimates in TACs and their consideration in other fishery management measures to the extent that adequate scientific data exist for doing so.

Comment 1: One commenter objected to having NMFS set absolute limits on the amount of bycatch that can occur, and specifically opposed the petition's recommendation that a fishery be closed when a bycatch quota is met. The commenter stated the objections were based on the fact that bycatch is already considered when setting TAC for Gulf of Mexico RFMC-managed finfish stocks, and that the bulk of the bycatch in this area has already been reduced to the level practicable by gear technology.

Response: NMFS believes that the level of bycatch for managed species should be considered in the setting of TACs, whether the acceptable level of bycatch is considered prior to setting of TACs for target species as in the Gulf of Mexico RFMC instance referred to by this commenter, or whether a bycatch quota is included in the actual TAC as in the NPFMC. However, reaching a specified bycatch limit may not necessarily require closure of the fishery, particularly when other mitigating measures are in place (e.g., reaching the bycatch limit may trigger an area closure or gear restriction). What is most important is that available information on bycatch should be used in formulating regulatory measures to manage fisheries, including fishery closures, where appropriate.

Comment 2: One commenter indicated that the South Atlantic RFMC would evaluate setting absolute limits on direct catch and bycatch for each fishery and closing the fishery when the limit is met, as additional data become available and if other approaches are not better suited.

Response: NMFS believes that RFMCs should consider all feasible approaches, such as direct catch and bycatch limits, when devising ways to mitigate bycatch.

Comment 3: One commenter stated that most Pacific RFMC fisheries are managed according to optimum yields and believes that total mortality should be the guiding criterion in fishery closure considerations if stock sustainability is the main concern. The commenter expressed the belief that decisions to limit bycatch for the purpose of minimizing waste, which are regulatory discards or economic discards that are not conservation problems, are best made on a case-by-case basis through the RFMC process.

Response: NMFS agrees with the comment.

Comment 4: One commenter disagrees that absolute bycatch limits should be used to close fisheries. The commenter stated that NMFS does not currently have the resources or capability to monitor bycatch, and believes it would be impossible to estimate bycatch on a timely basis and use such quotas as a trigger to close fisheries.

Response: To the extent that NMFS has the resources and capabilities to accurately monitor bycatch on a timely basis, such information could be used to trigger fishery closures if appropriate. For instance, Alaska Region managers are able to open and close groundfish fisheries in the Bering Sea and Aleutian Islands and in the Gulf of Alaska based on attainment of bycatch quotas. However, in some cases, especially with protected resources in which populations are extremely depleted, the interactions are rare and may vary greatly over time and area; thus, the level of observer coverage needed to identify a trigger and effectively respond may not be feasible at this time. In such instances, NMFS will seek to identify other means to monitor levels of take, as required within biological opinions and the MMPA.

Comment 5: One commenter expressed the belief that limits on catch and bycatch should be set, but stated that, as long as bycatch is counted against the TAC, there is no need to close a fishery when some predetermined bycatch limit is reached. The commenter suggests that reserve measures, such as area closures, gear restrictions or similar measures, should be developed on a case-by-case basis that would be triggered when the bycatch limit is reached.

Response: NMFS believes the comment is reasonable and that reaching of a bycatch limit may not necessarily require the closure of the fishery, particularly when other mitigating measures such as area closures or gear restrictions are in place and can adequately address any impacts that the bycatch may be having on the marine resource. Each fishery needs to be evaluated to determine the best means to mitigate bycatch.

Comment 6: One commenter suggested that NMFS identify catch limits of target and non-target species for each fishery, focusing first on populations that are most overfished. The commenter expressed support for moving toward absolute limits on bycatch in select fisheries based on status of the stocks and the life histories of all species affected by the fishery.

Response: NMFS generally agrees with the comment and particularly agrees with the need to set catch limits for target and non-target populations that are most overfished.

Comment 7: One commenter expressed the belief that the forced closure of fisheries when bycatch limits are reached ignores the “to the extent practicable” limitation of MSA national standard 9, the “optimum yield” requirements of MSA national standard 1, and the fishing community protection requirements of MSA national standard 8. Instead, the commenter supports the prohibited species catch (PSC) limits approach where practicable as employed by the NPFMC and NMFS in North Pacific fisheries (i.e., NPFMC exempting certain PSC bycatch limits when bycatch is negligible - low enough to make further reduction unnecessary from a biological standpoint and impracticable from a socio-economic standpoint).

Response: NMFS supports the flexibility that each RFMC has in developing appropriate conservation and management measures consistent with the MSA. At the same time, RFMCs and NMFS must consider the impact of the recommended and alternative actions on the environment.

Comment 8: One commenter opposed setting absolute limits on directed catch and bycatch because in many cases sufficient information is not available to even grossly estimate such limits for target species, let alone non-target species. The commenter supports incorporating such limits within FMPs once sufficient monitoring data is available to develop such limits.

Response: Normally NMFS does not support the incorporation of directed catch or bycatch limits for purposes of closure where sufficient monitoring data are not available. There may be instances where directed catch or bycatch limits need be imposed, based on the best available information, in order, for example, to safeguard a protected species or an overfished stock.

Comment 1: One commenter indicated that a requirement for observer programs for fisheries in which bycatch does not occur would be an onerous and costly strain on limited management staff and resources.

Response: NMFS agrees that mandatory observer programs for fisheries that utilize very selective gear or that fully utilize target and nontarget catch would normally represent an inappropriate strain on management resources. However, we do not believe that the 4th component of the petition for rulemaking requests observer coverage for all fisheries. Rather, the 4th component of the petition requests a description of the level and type of observer coverage necessary to accurately characterize total mortality (including bycatch) in a fishery. Such a description could determine that no observer coverage is necessary to accurately characterize mortality for certain fisheries. The approach to standardized bycatch reporting methodology that NMFS is developing, as discussed below, will be useful in determining the needs of individual fisheries.

Comment 2: One commenter suggested that for fisheries in which there are very little available data on bycatch due to very low levels of bycatch in the fisheries, assessing bycatch within a 12-month period would require substantial levels of observer coverage, which would be costly and inefficient effort that would have devastating effects on fishermen.

Response: We believe that fisheries for which insufficient bycatch data exist should be subject to increased data collection efforts if bycatch is perceived to be a problem. Monitoring efforts such as observer programs are very costly, and limited NMFS resources should be devoted to fisheries in which bycatch data are poor and where bycatch is perceived to be problematic. We agree that the 12-month time frame in the petition for developing, approving, and implementing bycatch assessment plans for commercial and recreational fisheries would be infeasible for most fisheries. While 12 months may be feasible for developing and seeking approval, this time frame would likely be insufficient for full (non-emergency) rulemaking.

Comment 3: Two commenters indicated that two RFMCs have already implemented bycatch assessment and reduction plans for almost all of their fisheries in compliance with national standard 9 in Section 301 of the Sustainable Fisheries Act (SFA).

Response: NMFS agrees that the efforts of various RFMCs over the past few years to address bycatch have largely accomplished the objectives of the bycatch assessment and reduction plans described in the 4th component of the petition for rulemaking. Some RFMCs have accomplished the objectives more completely than others, and this variation among RFMCs in addressing bycatch will be assessed by NMFS as part of its National Bycatch Strategy discussed below. One result of the assessment may be a checklist for the purpose of ensuring that all FMPs achieve a standard level of bycatch assessment and reduction.

Comment 4: Several commenters suggested that the petition's 12-month time frame for completing bycatch assessments and the rulemaking process would be virtually impossible to comply with due to time-intensive monitoring requirements and the RFMC process. Another commenter thought that implementing bycatch assessment and reduction plans for commercial and recreational fisheries was a good idea but that a 2-year or even a 5-year time frame would be more appropriate to allow a realistic amount of time to implement data collection programs and fishery management plan amendments.

Response: We agree that bycatch assessment and reduction plans for commercial and recreational fisheries are desirable and believe that elements of these plans are available for many fisheries in which bycatch data are abundant. Because other fisheries, especially recreational fisheries, have not been subject to long-term and rigorous bycatch assessment and reduction efforts, NMFS agrees that for many fisheries the 12-month time frame would not realistically allow for the implementation of bycatch assessment and reduction plans as outlined in the 4th component of the petition for rulemaking.

Comment 5: Several commenters suggested that the petition's directive that NMFS prohibit fishing in any fishery lacking a functioning bycatch plan 12 months after rulemaking commences represents an unduly severe burden on the fishing industry.

Response: NMFS has disapproved FMP amendments or portions thereof that inadequately addressed the bycatch requirements of the SFA. Examples include the partial disapproval of: Amendment 8 to the FMP for Pelagic Fisheries of the Western Pacific Region; Amendment 6 to the FMP for Bottomfish/Seamount Groundfish Fisheries of the Western Pacific Region; Amendment 12 to the FMP for Summer Flounder, Scup, and Black Sea Bass (only the bycatch provision for scup was disapproved); and the generic SFA amendment to all of the Gulf of Mexico FMPs. We believe that it is worthwhile to investigate the creation of uniform standards for bycatch assessment and reduction for all FMPs governing commercial and/or recreational fisheries based on the requirements listed in the 4th component of the petition for rulemaking. Nonetheless, NMFS believes that total fishing prohibitions for fisheries lacking bycatch plans within a 12-month time frame are inappropriate.

Comment 6: One commenter indicated that it would be impractical to assess fishery bycatch in relation to “the impact of that bycatch on bycaught species and the surrounding environment” because such data are not currently monitored and are unavailable.

Response: NMFS believes that the ecosystem effects of bycatch are an important consideration of fishery management. Nonetheless, we agree with the above comment that for many commercial and recreational fisheries, the ecosystem effects of bycatch are poorly understood due to monitoring limitations. NMFS has limited resources to fund the monitoring of bycatch and ecosystem effects of bycatch, and those resources, including resource-intensive observer programs, have to be prioritized to address fisheries with problematic levels of bycatch.

Comment 7: One commenter agreed with the petition's requirement that bycatch plans consider the various species with which a single fishery interacts, as well as the effects of multiple fisheries on a single stock, in order to create broad-based plans where the likelihood of compliance, effective enforcement, and success is optimal.

Response: We agree that these factors should be fully considered for fisheries where data have been collected on fisheries interactions, and managers should identify areas where fisheries interaction data are lacking and create plans to improve data collection. These factors are considered in most cases during the FMP creation process and addressed in the National Environmental Policy Act (NEPA) process.

Comment 8: One commenter expressed reservations about the petition's recommendation to use incentives for those who use gears that produce less bycatch because of unintended consequences that might occur when segments of the fishing industry change gears from a gear that causes one type of bycatch problem to another gear that causes a different type of bycatch problem.

Response: NMFS recognizes this problem and strives to fully analyze the various consequences of management actions, whether they be closed areas, gear restrictions, or fishermen's incentives.

NMFS and the RFMCs have undertaken many activities to both quantify and reduce bycatch. The most successful of these have required a comprehensive understanding of the type of and cause of bycatch, and cooperation between NMFS scientists, managers, RFMCs, and the fishing industry in implementing measures that are effective in reducing bycatch yet result in minimal impacts to fishermen.

NMFS is in the process of compiling summary information on a regional basis that identifies: bycatch species (fish, sea turtles, marine mammals, seabirds, corals); bycatch data collection methods being used (logbooks, observer programs, dockside sampling, etc.); percentage of coverage in observed fisheries; bycatch estimates where available; gear requirements or prohibitions; and other management measures being used to reduce bycatch. This summary information is being compiled in matrix form and will be made available in the near future on a dedicated NMFS bycatch website (http://www.nmfs.noaa.gov/bycatch.htm) linked from the NMFS homepage. NMFS plans for its new bycatch website, unveiled in January 2003, to eventually contain information about bycatch regulations and policy, bycatch-reduction research, bycatch experts, bycatch data sets, conferences/workshops, and technology-transfer efforts that will assist the public in understanding the bycatch problem, the efforts that have been taken and are being taken to address the bycatch problem, and the commitment of NMFS to meeting its bycatch goal. Following are some examples of progress made to date to quantify and reduce bycatch, and a summary of key ongoing activities.

Prior to the enactment of the SFA, NMFS established a national team which produced the 1998 report Managing the Nation's Bycatch available at http://www.nmfs.noaa.gov/bycatch.htm. This comprehensive report identified a number of high-priority needs in the area of gear technology and selectivity and fish behavior research. As is described below, some of the research has been devoted to fisheries interactions that are not defined as bycatch in the SFA, because the SFA defines bycatch in terms of fish, which is defined as “finfish, mollusks, crustaceans, and all other forms of marine animal and plant life other than marine mammals and birds”. However, Managing the Nation's Bycatch expanded the management concept of bycatch to include marine mammals, and seabirds. In 2001, NMFS formed the NMFS Gear Technology Working Group, and this group is helping to organize national priorities for gear technology research and ensure sustainable funding.

At the Alaska Fisheries Science Center (AFSC), gear technology research and research on the behavioral responses of fish both to fishing gear and to the stresses imposed by coming in contact with fishing gear have contributed substantially to efforts to address the bycatch problem. Species-specific differences in the response to fishing gear have been identified and used to develop gear modifications that increase the escapement of juvenile fish and other fish that would be discarded if caught. Examples of the gear modifications that have been developed include: (1) excluder grates to decrease halibut bycatch in the Alaska flatfish and Pacific cod trawl fisheries; (2) trawl modifications to decrease rockfish bycatch in west coast sole fisheries; (3) grates and square mesh in trawl codends to reduce the bycatch of juvenile pollock in the Alaska pollock fisheries; and (4) excluders and large mesh to reduce skate bycatch in Alaska trawl fisheries. Research on the differences in the responses of salmon and pollock to trawl gear has been completed and it is expected to result in the development of gear modifications to decrease salmon bycatch in the pollock fisheries. These types of fish behavior and gear technology research have generally been successful in identifying and implementing gear modifications that increase the escapement of select species of sizes of fish.

Additionally, in gear research conducted by the Washington Sea Grant Program (WSGP) and partially funded by a NOAA Saltonstall-Kennedy grant, seabird avoidance gear devices for use in the groundfish and halibut longline fisheries off Alaska were tested and found to significantly reduce the incidental catch of seabirds. NMFS is in the process of revising regulatory requirements for longline vessel operators off Alaska, based on this WSGP research.

As new methods are developed for increasing the escapement of select species or sizes of fish, there is an increased need to estimate escapement mortality. If the escapement mortality rates are very high, increased escapement simply replaces one type of bycatch mortality (e.g., discard mortality) with another type of bycatch mortality (i.e., escapement mortality), and the latter is unobserved, and, therefore, often more difficult to estimate. Examples of escapement and discard mortality research being conducted by the AFSC include: (1) research to determine the escapement mortality rate for juvenile pollock and to develop methods and equipment for use in future survival studies; (2) research on the factors that affect the escapement and discard mortality rates for halibut; and (3) research on the injury rates of red king crab that encounter and escape bottom trawl footropes on the sea floor.

At the Southwest Fisheries Science Center (SWFSC), satellite tracking of sea turtles is revealing significant new information on sea turtle habitat, movement patterns, and post-hooking survival. Approximately 50 turtles have been tracked with conventional ARGOS transmitters, and about 20 turtles have been tracked with 'pop-up' satellite tags. ARGOS transmitters indicate that sea turtles survive for many months after release from longline gear. The pop-up tags will provide more long-term information on post-hooking survival rates indicating whether turtles survive for 6 months or longer after release from longline gear. Post-hooking survival is also being correlated with the condition of released turtles.

SWFSC scientists have initiated research to develop gear and technique modifications to reduce the incidental take of sea turtles in the Hawaii-based pelagic longline fishery. The development of turtle-safe longline gear and turtle-safe fishing techniques are also needed to foster collaborative efforts with foreign fishing fleets in addressing the sea turtle bycatch problem on a world-wide basis. Although the research has been stalled due to litigation, NMFS remains committed to finding cost-effective approaches for protecting and conserving sea turtles while sustaining our domestic longline fisheries.

In 2001, the Southeast Fisheries Science Center, in cooperation with the U.S. pelagic longline fishing industry, the SWFSC, the Northeast Fisheries Science Center, and the University of Florida, began a research effort to investigate the feasibility of gear modifications and fishing practices to reduce the incidental capture of endangered and threatened sea turtles by pelagic longline fishing gear. NMFS gear specialists are working with fishermen and state and university researchers to gain insight into fishing gear and fishing practices to develop mitigation measures to reduce turtle interactions with longline gear. Prototype mitigation techniques are being developed using captive reared turtles in controlled experiments and these techniques are being evaluated on commercial fishing vessels in the Atlantic pelagic fishing grounds. These studies are ongoing and include evaluation of de-hooker and line cutter prototypes to allow removal of fishing gear from turtles; bait types and hook designs developed to reduce hooking rates and the severity of hooking of sea turtles; satellite tags to determine survival, distribution, and behavior of sea turtles released from fishing gear; and operational changes in fishing practices to reduce turtle interactions.

There have been several successful efforts by commercial fishermen and scientists in the Northeast to develop fishing gear with greater selectivity for a particular species, thus allowing the commercial fishing industry access to areas that have been closed to fishing due to declining groundfish stocks or entanglement mortality of marine mammals. Most notable among bycatch reduction efforts has been the use of sound producing devices called “pingers” in the sink gillnet fishery. Pingers that emit intervals of high frequency sound work well in deterring harbor porpoise from being entangled in fixed sink gillnets. In addition, various configurations of fish excluder devices have been tested and proven successful for the Northern shrimp fishery, which utilizes small-mesh net materials that are capable of catching groundfish species as bycatch.

The Nordmore grate was introduced to the Northwest Atlantic shrimp fishery after successful deployment by northern European shrimp fishermen. This grate allows large fish to slide up and out of the net, while at the same time allowing the smaller shrimp to pass through the grate into the codend for harvest. Shrimp fishing has been demonstrated to be more efficient using the grate. The Pandalid shrimp fishery has been successful in reducing finfish bycatch, particularly bycatch of Atlantic cod, to less than 5 percent of total catch in most areas. Current research projects are looking at similar grates with horizontal configurations to allow harvest of flatfish such as flounders while protecting round fish such as cod, haddock, and pollock.

Similar small mesh fisheries in waters off the coast of Massachusetts and Georges Bank targeting silver hake or whiting have benefitted from the development of otter trawl gears with “raised footropes.” Cape Cod and Massachusetts Bay fishermen developed and tested the raised footrope trawl to protect flounder species while allowing fishing for whiting during summer months. This innovative gear has reduced flounder bycatch in the whiting fishery by as much as 40 percent to 50 percent. The raised footrope trawl has been incorporated into the Georges Bank groundfish management plan and is being further tested in the Gulf of Maine. Additionally, various configurations are being researched using numerous short vertical dropper chains attached to the mouth of the net instead of the long horizontal “tickler” chain that is attached below the mouth of the net.

Observers provide the most reliable source of high quality, objective, fishery-dependent data. Observers provide information on all aspects of fishing operations, including total removal levels of catch and bycatch, biological samples and weights and measurements for life history research, temporal and spatial fishing strategies, and socio-economic data on fish loss and operating costs. They assist in special research activities, such as tagging and tracking of released animals. They also collect oceanographic and climate data for an ecosystem approach to fisheries and protected species management.

NMFS has seen an expansion in observer programs since the passing of the SFA. This has partly been in response to national standard 9, which requires that FMPs include conservation and management measures, to the extent practicable, that (a) minimize bycatch and (b) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch. Observers provide a reliable platform for observations regarding bycatch-data that may not be available through other sources if there is release or discard of unwanted catch at sea.

NMFS has approved and implemented 43 FMPs (41 of these were developed by RFMCs) and manages 143 distinct fisheries within these FMPs under the authority of the MSA. Another 178 fisheries operate in Federal waters that are currently not managed under an FMP. Since 1996, the number of commercial fisheries observed has doubled from 13 to 26 fisheries. In addition, NMFS observes a limited number of recreational fisheries. For example, NMFS' large pelagics survey conducts at-sea observations of catch (including bycatch) by headboats that target Atlantic highly migratory species (HMS). Also, NMFS plans to implement a new data collection methodology utilizing on-board observations of catch (including bycatch) for headboats in non-HMS Atlantic recreational fisheries as part of NMFS' Marine Recreational Fisheries Statistics Survey.

NMFS established a National Observer Program office within the headquarters Office of Science and Technology in 1999. The mission of this office is to provide a formalized mechanism for NMFS to address observer issues of national importance and to develop policies, plans, and procedures to ensure that observers and observer programs are fully supported. The policies, plans, and procedures reflect the diverse needs of regional observer programs while enhancing data quality and achieving consistency in key areas of national importance. This office is aided by an intra-agency advisory team comprised of representatives from each NMFS headquarters office and region. The team functions to identify issues of national concern, recommending or establishing, where appropriate, priorities for national research and problem solving, and supporting information collection and program implementation. The National Observer Program office has convened several workshops and an international conference to this end.

In addition to its role in policy development, the National Observer Program has been a driving force in the development and tracking of budget initiatives to modernize and expand observer programs. The program also serves as a clearinghouse for information regarding each of the regionally-implemented observer programs. General information about NMFS observer programs can be found on the National Observer Program's website, at http://www.st.nmfs.gov/st1/nop/.

In the over two decades since enactment of the MSA, the RFMCs and NMFS have taken many and varied actions to address bycatch. The RFMCs and NMFS have worked particularly hard to ensure that MSA bycatch requirements are reflected in management measures after the 1996 SFA amendments to the MSA focused additional attention on the issue of bycatch. Regional examples of progress are provided below.

The bycatch of Pacific halibut, crab, Pacific salmon, and Pacific herring in the Alaska groundfish fisheries has been an important management issue for more than 20 years. To address this problem, the NPFMC recommended and the Secretary of Commerce approved and implemented a variety of management actions that were intended to help control the bycatch of these prohibited species in the groundfish fisheries. Since the late 1980s, the bycatch of groundfish in the groundfish fisheries has also been a major management issue. Through 1996, 35 amendments to the BSAI and GOA groundfish FMPs were intended principally or in part to manage the bycatch of prohibited species and groundfish.

The initial groundfish FMPs and amendments to them prior to the SFA included a variety of bycatch management measures, including prohibitions on the retention of specific non-groundfish species, which are referred to as prohibited species, time and area closures and seasonal apportionments of groundfish quotas, gear restrictions, groundfish quota allocations by gear type, reductions in some groundfish quotas, extensive at-sea and on-shore observer programs to monitor bycatch, extensive requirements for reporting catch and product utilization, prohibited species catch (PSC) limits, a vessel incentive program (VIP) with civil penalties for fishing vessels that exceed established bycatch rates for Pacific halibut or red king crab, a prohibition on roe-stripping, required retention of Pacific salmon bycatch until counted by an observer, individual fishing quota (IFQ) management for the fixed-gear Pacific halibut and sablefish fisheries, target fishery definitions, and careful release regulations for longline fisheries. Additional measures that initially were considered before the SFA include: (1) a harvest priority program that would reserve part of the groundfish quotas or seasons for vessels that meet specific bycatch standards; (2) regulations that would both prohibit at-sea discards of the major groundfish species and limit the percentage of the catch that is not used to produce products for human consumption; (3) individual transferable bycatch quotas; and (4) methods to decrease the time between capture and release of Pacific halibut in groundfish trawl fisheries.

The at-sea observer program has been a critical element of the bycatch management regime for the Alaska groundfish fisheries for almost 30 years. The program was developed for the foreign fleets before the Fishery Conservation and Management Act (FCMA) was implemented and was extended to the domestic fishery once domestic vessels had all but replaced foreign fishing and processing vessels. The observer program resulted in fundamental changes in the nature of the bycatch problem. First, by providing good estimates of total groundfish catch and non-groundfish bycatch by species, it eliminated much of the concern that total fishing mortality was being underestimated due to fish that were discarded at sea. Second, it made it possible to establish, monitor and enforce the groundfish quotas in terms of total catch as opposed to only retained catch. For the groundfish fisheries, this means that both retained catch and discarded catch are counted against the TACs. Third, it made it possible to implement and enforce PSC limits. Finally, it provided extensive information that managers and the industry could use to assess methods to reduce bycatch and bycatch mortality. In summary, the observer program provided fishery managers with the information and tools necessary to prevent bycatch from adversely affecting the stocks of the bycatch species. Therefore, the bycatch in the groundfish fishery is principally not a conservation problem, but it can be a contentious allocation problem. Although this does not make it less controversial, it does help identify the types of information and management measures that are required to reduce bycatch to the extent practicable, as is required by the MSA.

Several post-SFA amendments to the GOA groundfish FMP were intended to decrease bycatch, including Amendment 59 (Cape Edgecombe Pinnacle Closure) and Amendment 60 (Cook Inlet Bottom Trawl Ban). In addition, several post-SFA amendments to the BSAI groundfish FMP were intended to decrease bycatch, including:

(1)Amendment 37, which modified red king crab PSC limits and established trawl closure areas in nearshore Bristol Bay;

(2)Amendment 39, which established a license limitation system;

(3)Amendment 46, which modified allocation of Pacific cod by gear type;

(4)Amendment 40, which established PSC limits for C. opilio crab in trawl fisheries and a bycatch limitation zone;

(5)Amendment 49, which established a mandatory retention program for pollock, Pacific cod, yellowfin sole and rock sole (IRU); and

(6)Amendment 50, which allowed donation of halibut to foodbanks.

In addition to the closed areas (areas of South Atlantic Bight, Gulf of Mexico, and off New Jersey), observer coverage, reporting requirements, dead discard accounting, and bycatch limits already in place for U.S. fishermen, the United States implemented new measures in 2002 to reduce bycatch in Atlantic HMS fisheries. These measures include:

a. Sea turtle bycatch reduction. New information on the sea turtle population status led NMFS to conclude that continued operation of the Atlantic pelagic longline fishery jeopardized endangered leatherback and threatened loggerhead sea turtles. Accordingly, per the requirements of a Biological Opinion (June 2001) and a final rule (67 FR 45393), NMFS closed the Grand Banks fishing area to U.S. vessels using pelagic longline gear. The Grand Banks has traditionally been an area of high swordfish catch as well as high sea turtle bycatch. Closure of the Grand Banks should decrease sea turtle bycatch by approximately 60 to 75 percent overall. The only pelagic longline fishing by U.S. pelagic longline fishing vessels currently allowed in the Grand Banks is under an experiment designed to test fishing techniques that will reduce interactions with sea turtles. Several other foreign countries fish on the Grand Banks, which is in international waters, so it is important to develop fishing techniques that those foreign fleets could use to reduce interactions. In addition to the closure of the Grand Banks, all longline fishermen are required in the Atlantic HMS fisheries to carry and use line clippers and dipnets to disentangle, and follow specific handling and release techniques to ensure survivability of, sea turtles caught incidentally to fishing operations.

In support of its domestic actions, the United States has been pursuing action relative to bycatch reduction measures within the International Commission for the Conservation of Atlantic Tunas (ICCAT). ICCAT is the international body charged with coordinating the management of HMS throughout the Atlantic Ocean and adjacent seas. At its 2002 meeting, ICCAT adopted a resolution on seabirds that urges parties to collect and provide data on seabird interactions, including incidental catches in ICCAT fisheries. ICCAT's science body, the Standing Committee on Research and Statistics (SCRS), is to assess the impact of the incidental catch of seabirds in ICCAT fisheries when feasible and report its findings. The measure also calls on parties to inform SCRS and the ICCAT Commission of the status of their National Plans of Action for Reducing Incidental Catches of Seabirds in Longline Fisheries and to implement the International Plan of Action on seabirds if they have not already done so. A resolution on sea turtles was discussed but not adopted at the 2002 ICCAT meeting. Among other things, the measure called on parties to voluntarily release turtles incidentally captured and to share information on safe handling; to collect and report information on sea turtle interactions in all ICCAT fisheries, and to provide information on other impacts on sea turtles in the Convention area, such as deterioration of nesting sites. Given concerns expressed about the proposal and the lack of time for full discussion, it was agreed that an effort would be made to revise the proposal after the ICCAT meeting and, if appropriate, to circulate it for mail vote.

b. Shark finning prohibition (applies in all areas subject to U.S. jurisdiction. In December 2000, the President signed into law the Shark Finning Prohibition Act, which bans nationwide the practice of removing the fins from a shark and discarding the carcass. That Act is intended to minimize waste and mortality of shark bycatch. On February 11, 2002, NMFS published a final rule (67 FR 6194-6202) to prohibit persons onboard any domestic vessel anywhere and foreign fishing vessels in the U.S. exclusive economic zone (EEZ) from engaging in shark finning, and to prohibit landing of shark fins without the corresponding carcasses by domestic and foreign fishing vessels. In addition, the final rule prohibited imports of fins harvested through the practice of finning.

The Southwest Region has been supporting the Pacific Fishery Management Council's (PFMC) efforts to develop an FMP for U.S. West Coast Fisheries for Highly Migratory Species (HMS FMP). The PFMC recently adopted the HMS FMP for submission to NMFS for review and approval in 2003. SFA bycatch requirements were among the critical aspects of the HMS FMP. The HMS FMP would:

(1)maintain the bycatch reduction achieved by current controls on HMS fisheries through state and Federal regulatory action under other authorities (e.g., state laws and regulations, MMPA and ESA);

(2)promote additional reduction through a catch-and-release program for recreational fisheries, including promotion of fish handling and release procedures to minimize harm and mortality from catch and release of HMS; and

(3)establish mandatory observer programs for fishery sectors not currently observed in order to measure actual bycatch and ultimately develop new bycatch avoidance and bycatch mortality avoidance gear and fishing techniques.

It should be noted that the HMS FMP would incorporate measures to minimize and control the take of sea turtles in the drift gillnet fishery for swordfish and sharks. The HMS FMP also would include provisions requiring that U.S. longline vessels operating out of the West Coast employ seabird avoidance gear and techniques as required of U.S. longline vessels operating under Western Pacific longline limited entry permits. The FMP also would prohibit West Coast based longline vessels fishing west of 150° W. long. from engaging in swordfish targeting (i.e., they would be under the same controls as longline vessels with Western Pacific longline limited entry permits). The FMP also would include framework procedures to facilitate rapid adoption of new measures as new problems are identified or solutions are developed, including measures to resolve future bycatch problems. Finally, under the FMP as approved late in 2002, West Coast based longline vessels would have been permitted to target swordfish if fishing east of 150° W. long. However, in response to a request from the Southwest Region, the PFMC has agreed to delay submitting the FMP to allow NMFS to conduct a rigorous scientific review of new data to determine if this would pose too high a risk of an unacceptable level of interactions with sea turtles. The PFMC will discuss this matter at its March 2003 meeting and may reconsider its decision on this measure in June 2003.

In June 2002, NMFS issued a final rule implementing a regulatory amendment under the Fishery Management Plan for the Pelagic Fisheries of the Western Pacific Region intended to minimize or prevent, injury to and mortality of sea turtles accidentally caught by hook-and-line fishing. The intent of the rule is to reduce interactions between endangered and threatened sea turtles and pelagic fishing gear and to mitigate the harmful effects of interactions that occur. The rule applies to the owners and operators of all vessels fishing for pelagic species under Federal western Pacific limited access longline permits (longline vessels) within the U.S. EEZ and the high seas around Hawaii, as well as those fishing for pelagic species with other types of hook-and-line gear (non-longline pelagic vessels) within the EEZ around Hawaii, American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, Midway, Johnston and Palmyra Atolls, Kingman Reef, and Wake, Jarvis, Baker, and Howland Islands (western Pacific region). This rule: (1) prohibits targeting swordfish north of the equator by longline vessels; (2) closes all fishing to longline vessels during April and May in waters south of the Hawaiian Islands (from 15° N. lat. to the equator, and from 145° W. long. to 180° long.); (3) prohibits the landing or possession of more than 10 swordfish per fishing trip by longline vessels fishing north of the equator; (4) allows the re-registration of vessels to Hawaii longline limited access permits only during the month of October; (5) requires all longline vessel operators to annually attend a protected species workshop; and (6) requires utilization of sea turtle handling and resuscitation measures on both longline vessels and non-longline pelagic vessels using hook-and-line gear.

Shrimp trawls have a significant, inadvertent bycatch of non-target finfish and invertebrates. Important fish species in the shrimp fishery bycatch include juveniles of red snapper, king and Spanish mackerel, and sharks. Current estimates indicate that roughly 34 million-juvenile red snappers are caught annually by shrimp trawlers, with approximately an 88-percent mortality rate. The Gulf of Mexico Fishery Management Council (GMFMC) developed Amendment 9 to the Fishery Management Plan for the Shrimp Fishery of the Gulf of Mexico (Gulf Shrimp FMP) which went into effect in 1998 to reduce the bycatch of juvenile red snappers while, to the extent practicable, minimizing adverse effects on the shrimp fishery. Amendment 9 requires the use of NMFS-certified bycatch reduction devices (BRDs) in shrimp trawls towed in certain areas of the Gulf of Mexico exclusive economic zone. To be certified, these BRDs, in conjunction with a vessels turtle excluder device (TED), must reduce the shrimp trawl bycatch mortality of age 0 and 1 red snapper by a minimum of 44 percent from the average level of mortality on these age groups during 1984-89.

The Gulf Fisheye and Jones-Davis BRDs, which were developed by commercial fishermen, met this criterion and were certified for use when the final rule implementing Amendment 9 became effective in 1998. Since 1998, shrimp trawl bycatch mortality of finfish has been reduced by 40 percent, and a 50 percent reduction appears reasonable with refinements to the Gulf Fisheye BRD or more extensive use of the Jones-Davis BRD. Since development of the recovery plan in 1989, directed landings of red snapper have increased from 3.9 million lbs. (1,769 mt) in 1990 to 9.12 million lbs. (4,136.8 mt) in 2001. Shrimp landings have increased since 1998 from 230 million lbs. (104,328 mt) to 256 million lbs. (116,121.6 mt) in 2001. In addition to reducing the shrimp trawl bycatch of red snapper, use of the Gulf Fisheye BRD also reduce the shrimp trawl bycatch of Atlantic croaker, spot, and butterfish significantly.

In March 2002, NMFS implemented a final rule for its groundfish annual specifications and management measures. This regulatory package notably revised the PFMC approach to managing of fisheries to reduce bycatch and discard of overfished groundfish species. This new approach calculated the co-occurrence of overfished species taken in fisheries for more abundant stocks. In analyzing these co-occurrences, analysts found seasonal variations in the rates at which overfished species were taken in fisheries for more abundant species. The PFMC then used this co-occurrence analysis to set trip limits and other management measures such that the groundfish fisheries had more access to abundant stocks during periods when overfished species co-occurrence rates were low. Further, the co-occurrence ratios were used to guide the PFMC's recommendations during the year so that no changes to management measures would result in increased bycatch and/or discard of overfished species.

In May 2002, NMFS implemented a bycatch allowance for Pacific halibut in the commercial, limited entry primary sablefish fishery in Federal waters between the U.S./Canada border and Pt. Chehalis, Washington. Retention of incidental halibut caught in the primary sablefish fishery is only allowable when the overall Washington, Oregon, California total allowable catch for Pacific halibut is above 900,000 lbs. (408.2 mt) which it was in both 2001 and 2002. For 2002, a quota of 88,389 lbs. (40.1 mt)of halibut was allocated to the limited entry primary sablefish fishery as a bycatch allowance.

In September 2002, NMFS implemented new depth-based management measures in the Pacific Coast groundfish fishery for September-December 2002. These depth-based management measures are designed to allow the harvest of healthy groundfish stocks while protecting areas where overfished species are commonly found. An emergency rule established a darkblotched rockfish conservation area (DBCA) extending from the U.S./Canada border to 40°10' N. lat. and between approximately 100 fathoms and 250 fathoms. This emergency rule maintained the closure to trawling with groundfish gear where darkblotched rockfish are commonly found, but allowed limited entry trawl access to healthy deepwater groundfish (seaward of 250 fathoms) and nearshore groundfish (shoreward of 100 fathoms) stocks outside of the DBCA.

Throughout 2002, NMFS has also supported a number of exempted fishing permits (EFPs) in the Pacific Coast groundfish fishery with the goal of these EFPs being used to develop fishing technologies that can be applied on a fleet-wide basis to minimize the bycatch of overfished species. These EFPs test fishing strategies and/or gear types in an effort to harvest healthy groundfish stocks while minimizing bycatch of overfished species. Additionally, many of the EFPs have full retention programs that allow overages to be forfeited to the states for charitable donations.

Under the sea scallop Fishery Management Plan, bycatch of finfish has been reduced by establishing minimum mesh requirements for the net material on the top of a scallop dredge (referred to as the “twine top”). The twine top is the primary location where finfish escape the dredge, and larger mesh improves escapement, especially of flatfish. This mesh size was increased in 1999 from 5-1/2 inches (13.97 cm) to 8 inches (20.32 cm). In addition, under some of the access programs that have allowed sea scallop dredge fishing in areas closed to protect juvenile scallops and/or Northeast multispecies, the mesh size has been increased to as much as 10 inches (25.4 cm) to ensure that bycatch is eliminated.

Under the Northeast (NE) Multispecies FMP, a significant bycatch management measure was implemented beginning in 1994 under a Secretarial emergency action (and permanently implemented under Framework Adjustment 9 to the FMP in 1995), and which was made further inclusive under Amendment 7 to the FMP in 1996. This measure prohibits all vessels, regardless of what fishery it is targeting, from fishing in the Gulf of Maine, Georges Bank or Southern New England waters, unless the vessel is fishing under a NE multispecies or sea scallop day-at-sea, or unless the fishery has been determined to have less than 5-percent bycatch of regulated NE multispecies, or the vessel is fishing with handgear or exempted gear (gear deemed not to be capable of catching NE multispecies).

Other bycatch reduction measures under the NE multispecies FMP include mesh size restrictions starting in 1982 and increasing over the years to as high as 6.5 inch (16.51 cm) and 7.0 inch (17.78 cm) mesh size nets implemented under a recent interim action, some of the largest mesh sizes for groundfish in the world. Large year-round and seasonal closure areas have also been implemented under the FMP over the years to help protect fish when concentrated or when spawning. Also, gear prohibitions, such as a prohibition on pair-trawling and brush-sweep trawls, in 1994 and 1999, respectively, have also contributed to reducing bycatch.

Under the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, NOAA Fisheries, Northeast Region implemented Gear Restricted Areas (GRAs) in the Mid-Atlantic Bight in 2000. GRAs had been recommended by the Mid-Atlantic Fishery Management Council (MAFMC) to reduce bycatch of small scup in small-mesh fisheries. These GRAs regulate the use of otter trawls with codend mesh less than 4.5 inches in size in areas and times that were identified as having high scup discards, specifically by vessels fishing for Loligo squid, black sea bass, and silver hake (whiting). The Northern GRA (located off the coast of Rhode Island and New York) is effective November 1 through December 31; the Southern GRA (extending from southern New Jersey to the border between Virginia and North Carolina) is operative January 1 through March 15.

NMFS is undertaking a proactive program to address sea turtle bycatch in state and Federal fisheries. On July 31, 2001 (66 FR 39474), NMFS published a comprehensive strategy to address sea turtle capture in fishing gear. Numerous fisheries have been implicated in the incidental capture of sea turtles along the Atlantic and Gulf of Mexico coasts. Both state and federally managed fisheries are involved as well as fisheries operating outside of a management plan, including recreational and international fisheries. Data available on the magnitude of the problem vary by fishery and area. The issue is a gear-type problem, rather than a specific target fishery problem. Certain types of gear are more prone to incidentally capturing turtles than others, depending on the nature of the gear, the way the gear is fished, and the time and area within which it is fished. Incidental take of sea turtles in fisheries has mostly been addressed with ESA section 7 consultation process on FMPs. This approach does not allow the integration of state-managed fisheries or fisheries in Federal waters that are not operating under an FMP and that do not fall under the requirements of Section 7, since no Federal activity is involved.

Major goals of the sea turtle bycatch strategy are to increase effectiveness in management and prioritize fishery interaction concerns. To achieve these goals, NMFS will: (1) continue to improve stock assessments for each stock/species of sea turtle; (2) improve and refine estimation techniques for the takes of sea turtles to ensure that the criteria for recovery are being met consistent with ESA mandates; (3) continue to improve the estimation or categorization of sea turtle bycatch by gear type and fishery; (4) evaluate the significance of bycatch by gear type; (5) convene specialist groups to prepare plans for reduction of takes for gear types with significant levels of take; and (6) promulgate ESA and MSA regulations implementing plans developed for take reduction by gear type.

The MMPA provides a complex system for controlling bycatch of marine mammals by commercial fisheries. NMFS implements this system through regulations at 50 CFR Part 229 for authorization for commercial fisheries under the MMPA and several other inter-related programs and actions. NMFS' Office of Protected Resources works with the National Observer Program to provide observer coverage under the MMPA. NMFS summarizes observer data in stock assessment reports, which NMFS prepares and periodically updates in accordance with the MMPA. In these stock assessment reports, NMFS estimates bycatch of marine mammals by commercial fisheries as provided under the MMPA. Stock assessment reports provide much of the data that NMFS uses to classify fisheries and publish the List of Fisheries under the MMPA.

NMFS implements bycatch reduction of marine mammals under the MMPA through take reduction teams and plans. The MMPA provides that NMFS must develop and implement a take reduction plan designed to assist in the recovery or prevent the depletion of each strategic stock of marine mammals that interacts with commercial fisheries that have frequent (Category I) or occasional (Category II) incidental mortality and serious injury of marine mammals. The MMPA provides the process by which NMFS is to develop take reduction plans through take reduction teams. Plans may include several types of measures to protect or restore marine mammal stocks, including fishery specific limits on bycatch, time or area restrictions, alternative gear or techniques and new technologies, education of commercial fishermen, and monitoring the effectiveness of such measures. NMFS must take a draft take reduction plan developed by the take reduction team into consideration and explain the reasons for any changes proposed by NMFS when publishing the plan and proposed regulations to implement the plan in the Federal Register. Given this process and these requirements, NMFS implements the take reduction team's draft plan to the maximum extent feasible given the goals of the MMPA and other legal requirements.

NMFS does not have sufficient funds available to develop and implement take reduction plans for all of these stocks, because there are considerable costs and personnel demands associated with the development of take reduction plans, including convening the take reduction team (which must include government and non-government representatives from various sectors), providing for team travel expenses, obtaining and preparing the data necessary to support team deliberations and devise take reduction strategies, researching alternative gear technologies, holding skipper workshops, monitoring the fishery, and enforcing the regulations in order to implement the plan. The MMPA provides that, if there is insufficient funding available to develop and implement a take reduction plan for all such stocks, then NMFS must use several factors to prioritize development and implementation of take reduction plans. NMFS has followed this provision to prioritize development and implementation of Pacific Offshore Cetacean, Harbor Porpoise, and Atlantic Large Whale take reduction plans. In addition, NMFS is in the process of developing a take reduction plan with the Western North Atlantic coastal bottlenose dolphins take reduction team. Finally, NMFS disbanded the Atlantic Offshore Cetacean take reduction team in August 2001, because the nature of the fisheries that were included in a draft plan had changed tremendously since 1996, when the take reduction team was convened and prepared a draft plan. NMFS is compiling data necessary for any take reduction plan or plans for marine mammal stocks that were addressed by this team.

Implementation of these take reduction plans provide examples of accomplishments in reducing bycatch of marine mammals. In 1997, NMFS issued regulations to implement the Pacific Offshore Cetacean Take Reduction Plan addressing incidental takes of beaked whales, pilot whales, pygmy sperm whales, sperm whales, and humpback whales in the California Oregon thresher shark/swordfish drift gillnet fishery. Management efforts included use of new technology (pingers, i.e., acoustic deterrent devices), gear modifications (lowering the depth of the net in the water column), outreach (mandatory skipper workshops), and permitting changes (to limit expansion of the fleet). In 1998, the team determined that the fishery had achieved the MMPA's immediate goal of reducing incidental mortality and serious injury below the potential biological removal (PBR) level for the strategic marine mammal stocks addressed by the plan. Efforts continue to ensure that bycatch remains less than PBR and that the MMPA's long-term goal is achieved of reducing incidental mortality and serious injury to insignificant levels approaching a zero mortality and serious injury rate.

In 1998, NMFS issued regulations to implement the Harbor Porpoise Take Reduction Plan addressing incidental takes of harbor porpoise in the Northeast sink gillnet fishery and the Mid-Atlantic coastal gillnet fishery through the use of pingers, gear modifications, and closures. Prior to implementation of this take reduction plan and fishery management plan actions intended to reduce harbor porpoise bycatch, an estimated 1,521 harbor porpoise died each year from interactions with these fisheries. Bycatch in both fisheries was dramatically reduced in 1999, 2000, and 2001 to levels below the PBR level in all three years. Efforts continue to ensure that bycatch remains less than the PBR level and that the MMPA's long-term goal is achieved.

Other marine mammals have been the focus of bycatch or entanglement reductions studies and regulations. In 1999, NMFS issued regulations to implement the Atlantic Large Whale Take Reduction Plan addressing incidental takes primarily of North Atlantic right whales, but also humpback, fin, and minke whales, in Atlantic lobster trap/pot and gillnet fisheries. This plan creates a regulatory (e.g., gear modifications, closures) and non-regulatory (e.g., disentanglement, gear research) framework for reducing bycatch. Recent efforts include a number of gear modifications, including requiring that fixed gear with lines attached to nets and traps have “weak links.” These devices are designed to break in the event that a large whale gets entangled in the line before the whale becomes more entangled. Atlantic lobster trap/pot and gillnet fisheries are now required to have weak links at various intervals on their fishing gear. In order to further protect right whales, NMFS has instituted Dynamic Area Management and Seasonal Area Management regulations to restrict fishing in areas where and times when right whales congregate to feed and are vulnerable to becoming entangled in lines from fixed fishing gear.

In 1999, the United Nations' Food and Agricultural Organization (FAO) adopted an International Plan of Action for Reducing the Incidental Catch of Seabirds in Longline Fisheries (IPOA-Seabirds). The IPOA-Seabirds is a voluntary measure under which FAO Member States agree to: (1) assess the degree of seabird bycatch in their longline fisheries; (2) develop individual national plans of action to reduce seabird bycatch in their longline fisheries that have a seabird bycatch problem; and (3) develop a course of future research and action to reduce seabird bycatch.

In 2000, NMFS participated in the First International Fishers Forum for Reducing Incidental Catch of Seabirds in Longline Fisheries. Fishermen, researchers, gear manufacturers, and others met for the first time and shared ideas, research plans, and codes of industry practices.

Then in February 2001, NMFS announced its U.S. National Plan of Action for Reducing the Incidental Catch of Seabirds in Longline Fisheries (NPOA), that was developed in cooperation with the U.S. Fish and Wildlife Service (USFWS) and the Department of State. Under the NPOA, NMFS is committed to: (1) assessing U.S. longline fisheries for seabird bycatch by February 2003 (including use of and expansion of existing observer programs); (2) implementing measures to reduce seabird bycatch within 2 years of determining a problem exists; (3) preparing an annual report on status of seabird bycatch mortality for each longline fishery; and (4) advocating NPOAs within relevant international fora.

In 2002, NMFS provided $250,000.00 in assistance to the Western Pacific Regional Fishery Management Council (WPFMC) in sponsoring the Second International Fishers Forum for Reducing Incidental Catch of Sea Turtles and Seabirds in Longline Fisheries held in November 2002. This forum had grown in scope and enthusiasm from the initial forum in 2000 and was attended by participants from over 28 Nations. The meeting was very successful in enhancing cooperation with the fishing industry, fishery agencies, academic institutions, NGOs, and international bodies on seabird and sea turtle bycatch research and outreach. Efforts are underway for a Third International Fishers Forum planned for 2004 in Japan. To fulfill its protected resources obligations, NMFS believes it is critical for the agency to work side-by-side with the fishing industry to design gear and alter fishing practices to reduce bycatch, as well as to monitor and evaluate bycatch and the effectiveness of bycatch reduction measures.

In order to understand the population-level impacts of incidental longline bycatch of seabirds and sea turtles, NMFS and the USFWS have undertaken studies to monitor population status and threats. These studies have identified numerous threats that continue to impact sea turtle and seabird populations.

Under the MSA, NMFS has taken action to prevent further impacts on seabirds and sea turtles, including implementation of bycatch reduction techniques for seabirds and area closures to reduce interactions with sea turtles. In recent years NMFS has promoted the development and use of practical and effective seabird and sea turtle management and mitigation measures by longline fishermen. A research program conducted by the Washington Sea Grant Program (WSGP) concluded that paired streamer lines effectively reduced seabird bycatch, compared to a control of no deterrents, by 88-100 percent. Regulatory requirements are being revised to reflect results from this research. This summer, the WSGP embarked on yet another study to test the effectiveness of seabird mitigation measures, this time testing the effectiveness of faster-sinking demersal gear at reducing seabird bycatch. Data are still coming in, but this technology looks very promising both as a seabird deterrent and as a gear that requires less handling on auto-liners. This kind of gear is being collaboratively tested on longliners in New Zealand.

A NMFS study in Hawaii found that blue-dyed bait and weights added to baits reduced the number of black-footed albatross gear interactions by approximately 90 percent. In addition, a highly successful pilot study was recently conducted in Hawaii on an underwater chute-setting device. This study included the Hawaii Longline Association, NMFS, the WPFMC, and the National Audubon Society, Bird Life International's U.S. partner. It found that underwater line-setting effectively reduced seabird bycatch, compared to a control of no deterrents, by 95-100 percent.

In 2002, NMFS implemented permanent seabird-specific mitigation measures (67 FR 34408, May 2002) recommended by the WPFMC to help reduce seabird interactions in the Hawaii-based longline fishery. Along with sea turtle conservation measures (67 FR 40232, June 12, 2002), including a prohibition on shallow setting for all Hawaii longline vessels fishing north of the equator, the seabird mitigation measures (i.e., use of thawed, blue-dyed bait, line setting machine or traditional basket-style longline gear, and strategic discard of offal) north of 23° N. lat., resulted in less than 50 seabird interactions observed in 2002, compared with about 160 interactions in 2001, and nearly 250 interactions in 2000. The reduction in seabird interactions occurred while NMFS was increasing observer coverage levels in the Hawaii longline fishery from 10 percent in 2000 to 23 percent in 2001, and to little more than 25 percent in 2002.

In the North Pacific, NMFS collaborated with Washington Sea Grant Program for the 2002 bycatch avoidance workshops for commercial longliners in Alaska ports. The NPFMC is changing existing regulations for seabird avoidance measures required in the groundfish and halibut hook-and-line fisheries off Alaska, and NMFS is promoting the USFWS free streamer line program in Alaska.

Also, in 2002 NMFS added seabird bycatch issue to agendas of several bilateral fisheries meetings to highlight the issue and promote and encourage implementation of FAO's IPOA-Seabirds. NMFS has placed or supported the placement of seabird bycatch on the agenda of the meetings of several international organizations (Asia Pacific Economic Cooperation (APEC), Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), and ICCAT). NMFS has also formed a bycatch reduction task force that will be seeking ways to address the issue of seabird issues in the international arena.

NMFS is also working to implement Executive Order 13186, signed by the President on January 10, 2001 (66 FR 3853), on the responsibilities of Federal agencies to protect migratory birds under the Migratory Bird Treaty Act and other laws. NMFS, in cooperation with USFWS, is drafting a Memorandum of Understanding to identify strategies that promote conservation of migratory birds through enhanced collaboration between NMFS and USFWS, in coordination with state, territorial, tribal, and local governments.

For several years NMFS has been engaged in ongoing activities, on a bilateral basis and through regional fisheries management organizations, seeking international bycatch assessment and bycatch reduction. Annual reports to Congress assessing the need for international bycatch agreements required by section 202(h) of the MSA have been made since 1996. In addition, an International Bycatch Reduction Task Force has been created whose activities are included in the most recent 202(h) report to Congress.

Section 202(h)(1) of the MSA directs the Secretary of State, in cooperation with NMFS, to secure international agreements to establish standards and measures for bycatch reduction that are comparable to the standards and measures applicable to U.S. fishermen. Section 202(h)(3) of the MSA requires NMFS, in consultation with the Secretary of State, to submit an annual report to Congress describing actions taken regarding potential international bycatch agreements pursuant to Section 202(h)(1) of the Act.

NMFS reviews management measures under all approved and implemented FMPs that address fish stocks also harvested by foreign fishermen to identify relevant bycatch standards and measures. In the report covering the period September 2000-December 2001, NMFS concluded, and the Department of State concurred, that pursuing international bycatch agreements pursuant to Section 202(h) of the MSA continued to be necessary and appropriate to address sea turtle bycatch in longline fisheries in both the Atlantic and Pacific Oceans. As a result, an international strategy, referred to as the Course of Action to Promote International Agreements that Address the Need to Reduce Sea Turtle Bycatch in Foreign Longline Fisheries, was developed to address this issue.

In January 2002, NMFS convened an International Bycatch Reduction Task Force made up of NMFS and U.S. Department of State representatives. A Plan of Action was subsequently developed by the Task Force to: (1) implement the strategy to promote international agreements that reduce sea turtle and seabird bycatch in foreign longline fisheries; and (2) promote the implementation of the Food and Agriculture Organization (FAO) International Plan of Action (IPOA) for Reducing Incidental Catch of Seabirds in Longline Fisheries and the FAO IPOA for the Conservation and Management of Sharks.

The Task Force Plan of Action outlines steps to be taken in implementing the U.S. strategy for international bycatch reduction. These tasks are broken up into two categories: international sea turtle workshops, and international communications relating to sea turtles, sharks and seabirds.

a. International Sea Turtle Workshops. The Task Force has engaged in a number of activities in support of international sea turtle workshops during 2002. A steering committee has been formed to guide the planning and execution of a NMFS-sponsored international technical workshop on sea turtle bycatch in longline fisheries during February 2003. This workshop: examined global and seasonal fleet distributions and effort; compared gear different configurations; looked at target species; compared existing regulatory regimes; and reviewed on-going bycatch reduction research. Diplomatic communications (demarches) were sent to longlining states (and Taiwan) announcing the workshop and requesting information on sea turtle interactions in their longline fisheries. The workshop was attended by 197 countries. Additionally, the workshop and other sea turtle initiatives have been promoted in regional fisheries management and bilateral meetings.

Scientific activities undertaken in support of the NMFS sea turtle workshop include an October 2002, NMFS staff review of preliminary results of on-going research relating to the reduction of sea turtle bycatch in longline fisheries. The results of this in-house review were presented during sea turtle discussions in November 2002 at the Second International Fisher's Forum to Reduce Bycatch of Sea Turtles and Seabirds in Longline Fisheries. This information was updated as necessary and was presented at the February 2003 NMFS international technical workshop on sea turtle bycatch in longline fisheries. The February 2003 workshop, held in Seattle, WA, included participants representing 20 nations. The purpose of convening the workshop was to share information on global longline fisheries and to share ideas and information on experiments and solutions to reduce the bycatch of turtles in longline fisheries where interactions occur.

b. International Communications Relating to Sea Turtles, Sharks and Seabirds. The United States has communicated through diplomatic channels with flag states with significant longline fleets (and Taiwan). As noted above, a demarche relating to sea turtles was made that emphasized the international nature of the sea turtle bycatch problem in longline fisheries, described steps that the United States is taking to address this problem, and requested that recipients provide information relative to sea turtle bycatch in longline fisheries. The demarche announced the date and location of the International Longline Sea Turtle Bycatch Technical Workshop. The United States will also make similar demarches to Executive Secretaries (or equivalent) of regional fisheries management organizations or arrangements in whose area of operation longline fishing occurs during 2002.

Demarches have also been made to flag states with significant longline fleets (and Taiwan) that requested information on the status of implementing the IPOAs for Seabirds and Sharks. In these communications, the United States encouraged: development and implementation of National Plans of Action for Seabirds, to promote the reduction of incidental catch of seabirds in longline fisheries where it occurs; and development and implementation of National Plans of Actions for Sharks, to promote the conservation and management of sharks and call attention to the international issue of shark finning. Additionally, the United States committed to provide information on topics relating to these IPOAs, including information that may be of use to states developing a National Plan of Action (NPOA) for Seabirds and an NPOA for Sharks. This communication provided an overview of the U.S. Shark Finning Prohibition Act.

During 2002, the United States has used current and new regional fishery management organizations (RFMOs) and existing bilateral relationships to call attention to the international problems of sea turtle bycatch and incidental catch of seabirds and sharks in longline fisheries. The United States continues to promote international cooperative efforts to collect standardized information on the incidence of sea turtle bycatch in longline fisheries and the technical workshop has been promoted as one forum to receive and consider such information.

In conclusion, NMFS has made significant progress on research and management measures to reduce bycatch and NMFS is committed to further expansion of these activities.

After carefully considering all public comment, the Assistant Administrator for Fisheries has determined that the four-part program requested by the petition does not lend itself to specific rulemaking at this time. NMFS recognizes that the agency must continue to address bycatch in many domestic and international fisheries; however, given the vast array of characteristics among individual fisheries (including gear usage, fishing conditions, and other factors) and ongoing initiatives, we do not believe that global/national rulemaking as requested by Oceana is appropriate. Instead, NMFS believes in a regional approach working through the existing regulatory processes of the appropriate legal authority. NMFS will continue working with RFMCs, RFMOs, states, and other partners and constituents to address bycatch and will renew and revise, as explained below, the agency's strategy to combat bycatch both domestically and worldwide. Actions not subject to the MSA RFMC process will be carried out directly by NMFS.

NMFS believes that appropriate avenues exist for fisheries rulemaking to address bycatch through the deliberative, public RFMC or Atlantic Highly Migratory Species Division process under the MSA, the ASMFC and the ACFCMA, the Take Reduction Teams under the MMPA, the ESA, and in support of the MBTA. NMFS believes that these processes and authorities should continue to be used to address specific bycatch problems rather than the petition process for comprehensive rulemaking. In addition, there is much that we have been doing and plan to do to address bycatch that is outside the purview of regulatory action, e.g., research for bycatch mitigation technology, international efforts, and voluntary use of observers.

NMFS published a comprehensive national bycatch plan in 1998 entitled Managing the Nation's Bycatch. This plan defines bycatch as “Discarded catch of any living marine resource plus retained incidental catch and unobserved mortality due to a direct encounter with fishing gear.” It is more inclusive than the definition of bycatch in the MSA because: (1) the plan's definition includes living marine resources other than “fish” as defined in the MSA (i.e., the plan's definition includes marine mammals and seabirds); (2) the plan's definition includes retained catch of non-target species, the MSA does not; and (3) the plan's definition includes fishing mortality of living marine resources that are not captured, but die after a direct encounter with fishing gear, the MSA does not. The plan's definition is also more inclusive than the definition of bycatch as used in the petition which refers to “the incidental catch of birds, mammals, turtles, and fish.” It is also important to note that the plan addresses bycatch as occurring in recreational and subsistence fisheries as well as commercial fishing operations.

The 1998 plan was developed over an 18-month period by a planning team composed of fisheries managers and scientists from all of NMFS' administrative regions. The public participated in the development of this plan; NMFS carefully considered comments from 36 organizations or individuals in response to a March 1997 notice of availability published in the Federal Register. Seven national objectives are listed in the plan as supporting achievement of NMFS' national bycatch goal (i.e, “to implement conservation and management measures for living marine resources that will minimize, to the extent practicable, bycatch and the mortality of bycatch that cannot be avoided”), and these seven objectives are broken down into 22 individual strategies consisting of 69 individual, substantive components. The plan also listed a series of regional recommendations. NMFS has undertaken many activities in support of these objectives and strategies, and continues to build on progress already made.

NMFS has determined, due to the continuing challenge of meeting the NMFS national bycatch goal, that we will undertake a comprehensive review of agency progress toward meeting the national bycatch goal, its supporting objectives and strategies, and the regional recommendations. This review will be part of the National Bycatch Strategy, which is comprised of the following six components:

1. Assess progress toward meeting the national bycatch goal, its supporting objectives and strategies, and regional recommendations (as set forth in Managing the Nation's Bycatch), which includes meeting the bycatch reduction requirements of relevant statutes, including national standard 9 of the MSA, Section 118 of the MMPA, and the take prohibitions of the ESA.

2. Develop a national approach to a standardized bycatch reporting methodology.

3. Implement the national bycatch goal through regional implementation plans.

4. Undertake education and outreach involving cooperative efforts, at the regional level (and other levels as appropriate), by fishery managers, scientists, fishermen, and other stakeholders to develop effective and efficient methods for reducing bycatch.

5. Utilize existing partnerships and develop new international approaches to reducing bycatch of living marine resources including fish stocks, sea turtles, marine mammals, and migratory birds, where appropriate.

6. Identify new funding requirements to effectively support the NMFS National Bycatch Strategy on an ongoing basis.

The first component of the National Bycatch Strategy will involve a headquarters-based team, along with an Atlantic HMS team and regional teams consisting of representatives from NMFS regional offices and science centers, in consultation with RFMCs, and will result in the preparation of “regional report cards” by July 2003: (1) documenting progress toward meeting the national goal, objectives, strategies, and regional recommendations; (2) suggesting ways to enhance compliance with existing bycatch mandates under the MSA (e.g., national standard 9) and Section 118 of the MMPA; (3) suggesting ways to enhance compliance with the take prohibitions of the ESA and to reduce takes of migratory birds; (4) recommending ways to strengthen the national bycatch goal, objectives, strategies, and regional recommendations to ensure adequate consideration of protected species and address any deficiencies that are identified; (5) listing related bycatch management gaps by priority of funding needs; and (6) recommending updates to the goal, objectives, strategies, and regional recommendations of the 1998 report, as appropriate.

The second component of the National Bycatch Strategy will be the development of a national approach to standardized bycatch reporting methodology for all U.S. commercial and recreational fisheries. The MSA currently requires that this be specified on a fishery-by-fishery basis, but fishery interactions and the deployment of observers and other data collection systems across fisheries indicate the need for a coordinated approach. A national in-house working group will be convened to evaluate the current methodologies for estimating bycatch, review the current use of self-reporting to estimate discards, evaluate the potential for estimating discards by inferences drawn from fishery independent surveys, recommend a statistical design for observer programs to cover all U.S. fisheries, recommend standards of precision to be achieved for discard estimates, and recommend observer sample sizes and associated costs for all U.S. fisheries. The working group will submit a final report to the Assistant Administrator for Fisheries by June 2003.

The third component of the National Bycatch Strategy, based on the assessment from the first and second components, will be the production by regional teams of regional and Atlantic HMS implementation plans and timelines that are developed in concert with national policy and guidance on bycatch. These plans should reflect any updating of the goal, objectives, and strategies of the 1998 report. The timing of the actual implementation of these plans will vary, depending on rulemaking schedules as well as resources, but will all be submitted to the Assistant Administrator for Fisheries by September 2003. The plans will include criteria for identifying “vulnerability” of discard species to adverse impacts; application of those criteria to identify the most serious discard problems; identification and evaluation of alternatives for reducing the adverse impacts of discards (including at least the reduction or elimination of overfishing target species, modification of fishing gear and/or fishing practices, time and/or area restrictions on fishing, and factors that determine the likelihood of success using each of the alternatives); and strategies for solving the problems that have been identified.

The fourth component of the National Bycatch Strategy will result, by September 2003, in the creation of a plan for expanding education and outreach activities involving the establishment of, coordination, and communications among regional working groups that specialize in fishery-specific bycatch issues. These regional groups may ultimately include regional marine advisory officers and others who work closely with fishermen. The purpose of these groups will be to formulate fishery-specific, effective, and efficient methods for cooperatively reducing bycatch. These methods could include incentive programs and/or other programs to encourage fishermen to reduce bycatch and assist in providing accurate estimates of bycatch. Incentives might include allocations of fish or extended fishing times to fishermen who voluntarily use specialized gear and fishing tactics to successfully reduce bycatch. Education and outreach will be an element of every regional plan developed in the third component. This effort will include sponsorship of symposia (including a major international bycatch symposium at the American Fishery Society's 2003 annual meeting), workshops, and other bycatch education and outreach activities. In addition, this effort will include updating and enhancing the dedicated NMFS bycatch website (http://www.nmfs.noaa.gov/bycatch.htm) on a regular basis.

The fifth component of the National Bycatch Strategy will address international approaches to reduce bycatch of living marine resources, including fish stocks, sea turtles, marine mammals, and migratory birds extending beyond U.S. waters. Existing international agreements will be examined for potential broadening and for progress in implementation. RFMOs and other fora will also be examined for effectiveness in resolving regional bycatch problems and as alternative fora for yielding more expedient results. NMFS will continue to report to Congress annually with an assessment of the need for international bycatch agreements, as required by section 202(h) of the MSA. Continuing activities will include seeking bycatch assessment and reduction on a bilateral basis and through regional fisheries management organizations.

The sixth component of the National Bycatch Strategy directs NMFS headquarters staff to use gaps and funding needs identified by the Atlantic HMS team and regional teams as part of the first component of the National Bycatch Strategy, to use observer costs estimated by the national working group under the second component of the National Bycatch Strategy, as well as other sources, to identify new agency funding requirements and make recommendations to modify NMFS's comprehensive 5-year plan “NOAA Fisheries' Requirements for Improved and Integrated Conservation of Fisheries, Protected Resources, and Habitat (Requirements Plan).” As this National Bycatch Strategy matures into a more robust strategy over coming months and years, funding needs and priorities will be revisited. The attainment of adequate funding is essential to the success of the National Bycatch Strategy.

NMFS will continue to build upon its accomplishments and accelerate its efforts in ensuring that renewed and revised objectives and strategies, as well as regional recommendations, from the 1998 Managing the Nation's Bycatch, the foundation for its National Bycatch Strategy, are fully implemented. We discussed the petition and NMFS' efforts on bycatch at the January 2003 meetings of the Marine Fisheries Advisory Committee and the RFMC Chairs. NMFS will discuss our national strategy with these and other fisheries groups and non-government organizations and report progress on bycatch activities at periodic meetings and through the NMFS bycatch website (http://www.nmfs.noaa.gov/bycatch.htm).