The FAA has implemented new procedures for maintaining AD dockets electronically. As of May 17, 2004, new AD actions are posted on DMS and assigned a docket number. We track each action and assign a corresponding directorate identifier. The DMS AD docket number is in the form “Docket No. FAA-2004-99999.” The Transport Airplane Directorate identifier is in the form “Directorate Identifier 2004-NM-999-AD.” Each DMS AD docket also lists the directorate identifier (“Old Docket Number”) as a cross-reference for searching purposes.

We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed under ADDRESSES. Include “Docket No. FAA-2004-19765; Directorate Identifier 2002-NM-72-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments submitted by the closing date and may amend the proposed AD in light of those comments.

We will post all comments we receive, without change, to http://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of our docket website, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc. You can review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you can visit http://dms.dot.gov.

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

You can examine the AD docket on the Internet at http://dms.dot.gov, or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the DMS receives them.

The Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom, notified us that an unsafe condition may exist on certain BAE Systems (Operations) Limited Model BAe 146 series airplanes and Model Avro 146-RJ series airplanes. The CAA advises that it has received a report of chafing of the fuselage skin and reinforcing plates along the wing to fuselage fairing access panels, both left- and right-hand sides. This condition, if not corrected, could result in chafing of the fuselage skin and reinforcing plates, which could lead to reduced structural integrity of the airplane's fuselage.

BAE Systems (Operations) Limited has issued Inspection Service Bulletin ISB.53-162, dated September 12, 2001. The inspection service bulletin describes the following procedures:

• Doing repetitive detailed inspections to detect discrepancies ( i.e. , chafing outside the limits specified in the service bulletin, scoring, or cracking) of the fuselage skin and reinforcing plates along the wing to fuselage fairing access panels on the left- and right-hand sides of the airplane;

• Contacting the manufacturer for disposition of plate repairs; and

• Submitting an inspection report to the manufacturer.

BAE Systems (Operations) Limited has also issued Modification Service Bulletin SB.53-162-01698A, Revision 1, dated January 31, 2002. The modification service bulletin describes procedures for modifying the fuselage skin at the wing-to-fuselage access panels, doing related investigative actions, and doing corrective actions if necessary, which eliminates the need for the repetitive inspections specified in BAE Systems (Operations) Limited Inspection Service Bulletin ISB.53-162. The modification involves applying protective tape along the fuselage at the access panel seal contact area and to the fuselage at the aft position. The related repetitive investigative actions involve repetitively inspecting the protective tape and sealant for damage and restoring if necessary.

The CAA mandated BAE Systems (Operations) Limited Inspection Service Bulletin ISB.53-162 and issued British airworthiness directive 002-09-2001 to ensure the continued airworthiness of these airplanes in the United Kingdom.

These airplane models are manufactured in the United Kingdom 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. We have examined the CAA's findings, evaluated all pertinent information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.

Therefore, we are proposing this AD, which would require accomplishing the actions specified in BAE Systems (Operations) Limited Inspection Service Bulletin ISB.53-162 described previously, except as discussed under “Differences Between the Proposed AD and the Service Bulletins.” The proposed AD also would provide an optional terminating action that would end the repetitive inspection requirements.

Operators should note that, although the Accomplishment Instructions of the BAE Systems (Operations) Limited Inspection Service Bulletin ISB.53-162 describe procedures for submitting an inspection report, this proposed AD would not require that action. We do not need this information from operators.

The BAE Systems (Operations) Limited Inspection Service Bulletin ISB.53-162 specifies that you may contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require you to repair those conditions using a method that we or the CAA (or its delegated agent) approve. In light of the type of repair that would be required to address the unsafe condition, and consistent with existing bilateral airworthiness agreements, we have determined that, for this proposed AD, a repair we or the CAA (or its delegated agent) approve would be acceptable for compliance with this proposed AD.

Operators should note that the Accomplishment Instructions of the Modification Service Bulletin SB.53-162-01698A, Revision 1, dated January 31, 2002, describes procedures for doing related repetitive investigative actions, and doing corrective actions if necessary. The related repetitive investigative actions involve inspecting the protective tape and sealant for damage, and restoring if necessary.

This proposed AD would affect about 65 airplanes of U.S. registry. The proposed inspection would take about 4 work hours per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $16,900, or $260 per airplane, per inspection cycle.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, the FAA is charged with promoting safety flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this proposed AD.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD 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.

For the reasons discussed above, I certify that the 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. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Docket Management System (DMS)

The FAA has implemented new procedures for maintaining AD dockets electronically. As of May 17, 2004, new AD actions are posted on DMS and assigned a docket number. We track each action and assign a corresponding directorate identifier. The DMS AD docket number is in the form “Docket No. FAA-2004-99999.” The Transport Airplane Directorate identifier is in the form “Directorate Identifier 2004-NM-999-AD.” Each DMS AD docket also lists the directorate identifier (“Old Docket Number”) as a cross-reference for searching purposes.

We invite you to submit any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under ADDRESSES. Include “Docket No. FAA-2004-19761; Directorate Identifier 2003-NM-167-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments submitted by the closing date and may amend the proposed AD in light of those comments.

We will post all comments we receive, without change, to http://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of our docket website, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You can review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you can visit http://dms.dot.gov.

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

You can examine the AD docket on the Internet at http://dms.dot.gov , or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the DMS receives them.

Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, notified us that an unsafe condition may exist on certain Bombardier Model CL-600-2B19 (Regional Jet series 100 & 440) airplanes. TCCA advises that incomplete drainage of the APU enclosure has been reported in service. Further investigation revealed that negative pressure, which may contribute to the drainage problem, could be created in the APU enclosure when the APU is operating on the ground. This condition, if not corrected, could create a potential fire hazard if flammable liquid leakage occurs inside the APU enclosure and cannot be completely drained overboard.

Bombardier has issued Service Bulletin S.B. 601R-49-015, including Appendix A, dated November 6, 1998, which describes procedures for modification of the APU cooling air exhaust. This modification corrects the negative pressure problem and increases the volume of air entering the APU enclosure. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. TCCA mandated the service information and issued Canadian airworthiness directive CF-2002-21, dated March 21, 2002, to ensure the continued airworthiness of these airplanes in Canada.

Bombardier Service Bulletin S.B. 601R-49-015 refers to Avica Service Bulletin 10S145-49-01, dated July 15, 1998, and Canadair Kit Drawing K601R97150, Rev NC, as additional sources of service information for doing the modification. The Avica service bulletin and the Canadair Kit Drawing are included as Appendix A of the Bombardier service bulletin.

This airplane model is manufactured in Canada and is 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, TCCA has kept the FAA informed of the situation described above. We have examined TCCA's findings, evaluated all pertinent information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Therefore, we are proposing this AD, which would require modification of the APU cooling air exhaust. The proposed AD would require you to use the Bombardier service information described previously to perform these actions.

Although the Accomplishment Instructions of the Bombardier service bulletin indicate to submit a comment sheet and a compliance sheet, this proposed AD does not require that action.

This proposed AD would affect about 120 airplanes of U.S. registry. The proposed actions would take about 10 work hours per airplane, at an average labor rate of $65 per work hour. There would be no charge for parts that may be required to perform the actions required by this AD. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $78,000, or $650 per airplane.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, the FAA is charged with promoting safety flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this proposed AD.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD 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.

For the reasons discussed above, I certify that the 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. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

The FAA has implemented new procedures for maintaining AD dockets electronically. As of May 17, 2004, new AD actions are posted on DMS and assigned a docket number. We track each action and assign a corresponding directorate identifier. The DMS AD docket number is in the form “Docket No. FAA-2004-99999.” The Transport Airplane Directorate identifier is in the form “Directorate Identifier 2004-NM-999-AD.” Each DMS AD docket also lists the directorate identifier (“Old Docket Number”) as a cross-reference for searching purposes.

We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed under ADDRESSES. Include “Docket No. FAA-2004-19762; Directorate Identifier 2004-NM-168-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments submitted by the closing date and may amend the proposed AD in light of those comments.

We will post all comments we receive, without change, to http://dms.dot.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of our docket website, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You can review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you can visit http://dms.dot.gov .

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

You can examine the AD docket on the Internet at http://dms.dot.gov , or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the DMS receives them.

The Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, notified us that an unsafe condition may exist on all Airbus Model A318, A319, A320, and A321 series airplanes fitted with GOODRICH spoiler actuators part number (P/N) 31077-050, -060, -070, -110 or -112. The DGAC advises that an incorrect manufacturing process resulted in the seal groove radii of the piston rod bearing of the spoiler servo control being smaller than the drawing specification. This condition, if not corrected, could result in reduced fatigue life of the piston rod bearing and consequent breakage, which could cause loss of the associated hydraulic system and spoiler extension, and could result in reduced controllability of the airplane.

Airbus has issued Service Bulletin A320-27-1158; and Service Bulletin A320-27-1159; both including Appendices 01 and 02; both dated May 26, 2004. The service bulletins describe procedures for inspecting the spoiler servo control for part numbers 31077-050, -060, -070, -110, and -112, and corrective action if necessary. The corrective action includes replacing the spoiler servo control with a new or modified spoiler servo control.

The inspections are to be done at the following positions:

• For Model A318, A319, and A321 series airplanes: Positions 1 through 5

• For Model A320 series airplanes on which Airbus modification 26335 and Airbus Service Bulletin A320-27-1115, dated October 27, 1997; and Revision 01, dated June 22, 1999; has not been done: Positions 1, 2, and 3

• For Model A320 series airplanes on which Airbus modification 26335 or Airbus Service Bulletin A320-27-1115, dated October 27, 1997; or Revision 01, dated June 22, 1999; has been done: Positions 1 through 5

Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The DGAC mandated the service information and issued French airworthiness directive F-2004-122, dated July 21, 2004, to ensure the continued airworthiness of these airplanes in France.

Airbus Service Bulletins A320-27-1158 and A320-27-1159, both dated May 26, 2004, refer to Goodrich Service Bulletin 31077-27-14, dated May 24, 2004, as an additional source of service information for modifying the spoiler servo control.

These airplane models are manufactured in France 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 DGAC has kept the FAA informed of the situation described above. We have examined the DGAC's findings, evaluated all pertinent information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.

Therefore, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the Proposed AD and the Service Bulletins.”

Operators should note that Airbus Service Bulletin A320-27-1158; and Service Bulletin A320-27-1159; both dated May 26, 2004; specify to contact Goodrich if the part number of the servo control is missing. However, this proposed AD requires operators to replace the spoiler servo control with a new or modified spoiler servo control if operators are unable to determine the part number.

Although the Accomplishment Instructions of Airbus Service Bulletins A320-27-1158 and A320-27-1159 describe procedures for reporting certain information to the manufacturer, this proposed AD would not require that action.

Airbus Service Bulletins A320-27-1158 and A320-27-1159 specify to do a “visual inspection” to determine the part number of the spoiler servo controls. This proposed AD would require a “general visual inspection” for these actions. We have included the definition for a general visual inspection in a note in this proposed AD.

French airworthiness directive F-2004-122, dated July 21, 2004, has an effectivity of “AIRBUS A318, A319, A320 and A321 aircraft, all certified models, all serials numbers, fitted with GOODRICH spoiler actuators P/N 31077-050, -060, -070, -110 or -112.” However, because spoiler actuators are interchangeable on Airbus Model A318, A319, A320, and A321 series airplanes, airplanes not fitted with the spoiler actuators P/N 31077-050, -060, -070, -110 or “112 may have a spoiler actuator P/N 31077-050, -060, -070, -110 or “112 installed in the future by operators during normal maintenance. Therefore, the applicability of this proposed AD includes all Airbus Model A318, A319, A320, and A321 series airplanes. Both the proposed AD and French airworthiness directive require an inspection for the part number of the spoiler actuator (spoiler servo control).

Although the Accomplishment Instructions of Airbus Service Bulletin A320-27-1158 do not specify procedures for Model A318 and A319 series airplanes, those models are specified in the Reason/Description/Operational Consequences section of the service bulletin, which recommends inspecting positions 2, 3, 4, and 5 for those models. Those models are also specified in the note within the Effectivity, section 1.A., of the service bulletin. This proposed AD would require inspections for Model A318 and A319 series airplanes at positions 2, 3, 4, and 5; and corrective actions if necessary.

Although the Accomplishment Instructions of Airbus Service Bulletin A320-27-1159 do not specify procedures for Model A318 and A319 series airplanes, those models are specified in the Reason/Description/Operational Consequences section of the service bulletin, which recommends inspecting position 1 for those models. Those models are also specified in the note within the Effectivity, section 1.A., of the service bulletin. This proposed AD would require inspections for Model A318 and A319 series airplanes at position 1 and corrective actions if necessary.

The following table provides the estimated costs for U.S. operators to comply with this proposed AD.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, the FAA is charged with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this proposed AD.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD 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.

For the reasons discussed above, I certify that the 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. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

The FAA has implemented new procedures for maintaining AD dockets electronically. As of May 17, 2004, new AD actions are posted on DMS and assigned a docket number. We track each action and assign a corresponding directorate identifier. The DMS AD docket number is in the form “Docket No. FAA-2004-99999.” The Transport Airplane Directorate identifier is in the form “Directorate Identifier 2004-NM-999-AD.” Each DMS AD docket also lists the directorate identifier (“Old Docket Number”) as a cross-reference for searching purposes.

We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed under ADDRESSES. Include “Docket No. FAA-2004-19763; Directorate Identifier 2004-NM-187-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments submitted by the closing date and may amend the proposed AD in light of those comments.

We will post all comments we receive, without change, to http://dms.dot.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of our docket website, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You can review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you can visit http://dms.dot.gov .

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

You can examine the AD docket on the Internet at http://dms.dot.gov , or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the DMS receives them.

Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, notified us that an unsafe condition may exist on certain Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes. TCCA advises that it has received reports indicating that the links of the aileron power control unit (PCU) have failed on several in-service airplanes. Failure of one link is considered to be a dormant failure. Failure of both links, if not corrected, could result in reduced lateral control of the airplane.

Bombardier has issued Alert Service Bulletin A601R-27-130, Revision “B,” including Appendices A and B, dated May 11, 2004. The service bulletin describes procedures for doing repetitive detailed inspections for fractures and cracks of the links of the aileron PCU; replacing any fractured/cracked link; and doing applicable related investigative and corrective actions, if necessary. The related investigative/corrective actions include:

• Recording the torque value of the forward and aft attachment bolts for both links of the applicable aileron PCU;

• Checking for mismatch between the link and output fork of aileron PCU; and

• Doing an eddy current inspection of the lugs of the aileron PCU, and contacting the airplane manufacturer if a crack is found.

The service bulletin also describes procedures for submitting inspection findings and other information to the airplane manufacturer.

TCAA mandated the service information and issued Canadian airworthiness directive CF-2004-13, dated July 20, 2004, to ensure the continued airworthiness of these airplanes in Canada.

This airplane model is manufactured in Canada and is 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, TCCA has kept the FAA informed of the situation described above. We have examined TCCA's findings, evaluated all pertinent information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.

Therefore, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the AD and Service Bulletin.”

The service bulletin specifies that you may contact the manufacturer for disposition of any cracked aileron lug, but this proposed AD would require you to disposition and replace any cracked aileron lug using a method that we or TCCA (or its delegated agent) approve. In light of the type of replacement that would be required to address the unsafe condition, and consistent with existing bilateral airworthiness agreements, we have determined that, for this proposed AD, a replacement we or TCCA approve would be acceptable for compliance with this proposed AD.

Operators should note that, although the Accomplishment Instructions of the referenced service bulletin describe procedures for submitting a comment sheet related to service bulletin quality and a sheet recording compliance with the service bulletin, this proposed AD would not require those actions. We do not need this information from operators.

This is considered to be interim action until final action is identified, at which time we may consider further rulemaking.

This proposed AD would affect about 697 airplanes of U.S. registry. The proposed inspection would take about 1 work hour per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $45,305, or $65 per airplane, per inspection cycle.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD 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.

For the reasons discussed above, I certify that the 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. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

The FAA has implemented new procedures for maintaining AD dockets electronically. As of May 17, 2004, new AD actions are posted on DMS and assigned a docket number. We track each action and assign a corresponding directorate identifier. The DMS AD docket number is in the form “Docket No. FAA-2004-99999.” The Transport Airplane Directorate identifier is in the form “Directorate Identifier 2004-NM-999-AD.” Each DMS AD docket also lists the directorate identifier (“Old Docket Number”) as a cross-reference for searching purposes.

We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed under ADDRESSES. Include “Docket No. FAA-2004-19764; Directorate Identifier 2004-NM-02-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments submitted by the closing date and may amend the proposed AD in light of those comments.

We will post all comments we receive, without change, to http://dms.dot.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that website, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You can review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you can visit http://dms.dot.gov .

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

You can examine the AD docket on the Internet at http://dms.dot.gov , or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the DMS receives them.

We have received a report indicating that, during production, an anti-static coating was not applied correctly on fuel access and thermal anti-icing blowout doors at the location of the bonding fasteners on the leading edge of the wings on certain Boeing Model 777-200 and -300 series airplanes. The anti-static coating is necessary to help ensure an electrical bond ground path at the doors, which are located within a flammable fluid leakage zone. Without the anti-static coating, a static charge may build up and provide an ignition source for flammable vapors when the static discharges. This condition, if not corrected, could result in an uncontrollable fire in the leading edge of the wing, which could damage critical wing structures and cause a fuel tank explosion.

We have reviewed Boeing Special Attention Service Bulletin 777-57-0046, dated September 25, 2003. The service bulletin describes procedures for applying an anti-static conductive coating on the fuel access and thermal anti-icing blowout doors, and performing a resistance test on the new coating to ensure correct ground path resistance. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.

We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. Therefore, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed in “Difference Between this Proposed AD and the Service Bulletin.”

Boeing Special Attention Service Bulletin 777-57-0046, dated September 25, 2003, does not specify any action if the resistance does not meet the limits specified in the service bulletin. The proposed AD would require that operators reapply and retest the anti-static coating if the resistance does not meet the limits specified in the service bulletin, and contact the FAA for disposition of repairs if multiple reapplications and retests do not meet the specified limits after the fifth repetition of the test.

This proposed AD would affect about 65 airplanes worldwide and 18 airplanes of U.S. registry. The proposed actions would take about 5 work hours per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $5,850, or $325 per airplane.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, the FAA is charged with promoting safety flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this proposed AD.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD 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.

For the reasons discussed above, I certify that the 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. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

There is confusion regarding whether a practitioner who practices and is registered in one state and wishes to practice and prescribe in another state must register with DEA in the second state. DEA proposes to amend its regulations to make it clear that when an individual practitioner who practices and is registered in one state seeks to practice and prescribe controlled substances in another state, he/she must obtain a separate DEA registration for the subsequent state.

The Controlled Substances Act (CSA) requires that a separate registration be obtained for each location at which controlled substances are manufactured, distributed, or dispensed (21 U.S.C. 822(e)). Under this requirement, an individual practitioner must have a separate DEA registration, predicated on a separate state license, if he/she practices in offices that are located in different states and administers, dispenses directly, or prescribes controlled substances from both offices. However, DEA has provided in the regulations (21 CFR 1301.12(b)(3)) that “an office used by a practitioner (who is registered at another location) where controlled substances are prescribed but neither administered nor otherwise dispensed as a regular part of the professional practice of the practitioner at such office, and where no supplies of controlled substances are maintained,” is not a location for which a registration must be obtained. This regulation is intended to apply only to secondary locations within the same state in which the practitioner maintains his/her DEA registration. However, because the language in Section 1301.12(b)(3) does not specify that it pertains to intrastate locations only, individual practitioners have been applying the regulation to interstate situations, which is contrary to the intent of the regulation, the CSA, and the underlying principles that apply to individual practitioner registration.

The issuance by DEA of an individual practitioner registration is predicated, in part, on the practitioner being authorized ( e.g. licensed) to dispense controlled substances by the state in which he/she practices (21 U.S.C. 823(f)). Valid state authority to dispense controlled substances is a necessary, but not sufficient, condition for obtaining a DEA registration. DEA will not register a practitioner at a particular location within a state if the practitioner lacks valid state authority to dispense controlled substances in that state. DEA registration serves, in part, to reflect that the individual practitioner has been granted some level of controlled substances authority by the state. In light of the above, a DEA registration is considered to be related directly and exclusively to the license issued to the practitioner by the state in which he/she maintains the registration.

There are problems associated with use of a single DEA registration in different states. For instance, if a practitioner licensed in the State of North Carolina and possessing a DEA registration predicated on that state license subsequently opened an office in Virginia, then any controlled substance prescriptions he/she wrote in Virginia would be invalid for the following reason.

To be valid in a particular jurisdiction, a controlled substance prescription must be written by a practitioner who possesses valid state authority in that jurisdiction and, equally important, the practitioner must possess a DEA registration predicated upon valid state authority in that jurisdiction (or be exempted from the registration requirement) (21 CFR 1306.03(a)). In the example cited above, the practitioner possesses valid state authority in North Carolina and a DEA registration based upon that state authority. Therefore, the practitioner's controlled substance prescriptions would be valid in North Carolina. Because the practitioner lacks a DEA registration based on valid state authority in Virginia, the practitioner's controlled substance prescriptions in Virginia would be invalid.

Similarly, if an optometrist licensed in the State of Virginia and possessing a DEA registration predicated on said license subsequently opened an office in North Carolina prescribing oxycodone with acetaminophen (a Schedule II controlled substance) the prescription would be invalid. This is due to the fact that the DEA registration was issued pursuant to Virginia authority while the prescription was written based on North Carolina state licensure and authority. North Carolina and Virginia authorize different levels of prescribing authority to optometrists. In Virginia, optometrists are only permitted to prescribe analgesics in Schedules III and IIIN, while in North Carolina optometrists are authorized to prescribe Schedules II through V controlled substances. Therefore, the prescription for oxycodone with acetaminophen would also be invalid due to the fact that Virginia authority is more restrictive than North Carolina's and does not allow the prescribing of Schedule II controlled substances by optometrists.

Title 21 U.S.C. 823(f) states that the Attorney General (as delegated to DEA) shall register practitioners to dispense controlled substances if the applicant is authorized to dispense the controlled substances under the laws of the state in which the applicant practices. Title 21 U.S.C. 841(a) prohibits any person from knowingly or intentionally dispensing a controlled substance except as permitted by the CSA. As previously stated, controlled substances may not be dispensed without state authorization to do so.

To avoid any further misinterpretation, DEA is proposing to modify its current regulation found in 21 CFR 1301.12(b)(3) by adding the words “in the same state or jurisdiction of the United States” to the parenthetical statement. This would make clear that the regulation applies only to separate locations maintained within one state for which the practitioner possesses state licensure and DEA registration. The practitioner must maintain separate state licensure and DEA registration for separate locations in a different state.

The Deputy Assistant Administrator hereby certifies that this rulemaking has been drafted 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. This proposed rule merely clarifies existing regulations regarding the registration by individual practitioners conducting business in more than one state.

The Deputy Assistant Administrator further certifies that this rulemaking has been drafted in accordance with the principles in Executive Order 12866 Section 1(b). This rule has been determined to be a significant regulatory action. Therefore, this action has been reviewed by the Office of Management and Budget. This proposed rule merely clarifies existing regulations regarding the registration by individual practitioners conducting business in more than one state.

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

This rulemaking does not preempt or modify any provision of state law; nor does it impose enforcement responsibilities on any state; nor does it diminish the power of any state to enforce its own laws. Accordingly, this rulemaking does not have federalism implications warranting the application of Executive Order 13132.

This Notice of Proposed Rulemaking merely clarifies that DEA registration must be obtained by practitioners for each state in which a practitioner conducts business, except under certain specific circumstances. While it is possible that the amendment of the regulations could cause certain persons who were not previously registered to register with the Administration, it is not possible for DEA to determine how many persons might be affected by this circumstance. It is important to note that this rule serves merely as a clarification; the Controlled Substances Act, which establishes the requirement of registration, has not been changed, and the requirement of registration addressed by this rulemaking remains consistent. Therefore, persons who would register as a result of publication of this clarification should have been previously registered with the Administration but were not registered due to confusion regarding registration requirements. Thus, at this time, as DEA is not able to determine the impact of this rulemaking on the registrant population, DEA will make any necessary revisions to the affected information collection at the time of renewal of the collection.

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and 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 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

The subject of the public hearing is the notice of proposed regulations (REG-208254-90 and REG-136481-04) that was published in the Federal Register on Friday, August 6, 2004 (69 FR 47816).

The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who have submitted written or electric comments and wish to present oral comments at the hearing must submit an outline of the topics to be discussed and the amount of time to be devoted to each topic (signed original and eight copies) by December 10, 2004.

A period of 10 minutes is allotted to each person for presenting oral comments. After the deadline for receiving outlines has passed, the IRS will prepare an agenda containing the schedule of speakers. Copies of agenda will be made available, free of charge, at the hearing. Because of access restrictions, the IRS will not admit visitors beyond the immediate entrance area more than 30 minutes before the hearing. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this document.

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD05-04-196), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the address listed under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

The regulations at 33 CFR 100.518 will be effective annually for the duration of each proposed marine event listed in paragraph (c) of Section 100.518, U.S. Naval Academy marine events. Paragraph (c) of Section 100.518 lists the proposed effective dates for the Safety at Sea Seminar on the last Saturday of March, the U.S. Naval Academy crew races on the third and fourth Saturday of April, and the third Friday in May, and the Blue Angels air show on the last Tuesday and Wednesday in May. Notice of exact time, date and location will be published in the Federal Register prior to the event. The proposed northwest and southeast boundaries of the regulated area in section 100.518 would be extended approximately 1200 yards to accommodate the aerobatic maneuvering area for the air show and encompass the rowing course for Naval Academy crew races. The U.S. Naval Academy who is the sponsor for all of these events intends to hold them annually.

The Coast Guard proposes to amend the regulations at 33 CFR 100.518 by revising the heading, revising paragraph (c) to set forth more specific event dates, and adjusting the boundaries of the regulated area in paragraph (a). This proposed change is needed to control vessel traffic during the event to enhance the safety of participants, spectators and transiting vessels.

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

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. The effect of this proposed action merely establishes the dates on which the existing regulations would be in effect and modifies the boundaries of the regulated area and would not impose any new restrictions on vessel traffic.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would effect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in a portion of the Severn River during the event.

This proposed rule would not have a significant economic impact on a substantial number of small entities for the following reasons. This proposed rule would merely establish the dates on which the existing regulations would be in effect and modify the boundaries of the regulated area and would not impose any new restrictions on vessel traffic.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment ( see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the address listed under ADDRESSES. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

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

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

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

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

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

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

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction, from further environmental documentation. Special local regulations issued in conjunction with a regatta or marine event permit are specifically excluded from further analysis and documentation under that section.

Under figure 2-1, paragraph (34)(h), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule. Comments on this section will be considered before we make the final decision on whether to categorically exclude this rule from further environmental review.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:

Background

Section 4(b)(3)(B) of the Endangered Species Act of 1973 (Act), as amended (16 U.S.C. 1531 et seq. ), requires that, for any petition to revise the Lists of Endangered and Threatened Wildlife and Plants that contains substantial scientific and commercial information, the Service make a finding within 12 months of the date of receipt of the petition on whether the petitioned action is (a) not warranted, (b) warranted, or (c) warranted but precluded from immediate proposal by other pending proposals of higher priority. Pursuant to section 4(b)(3)(C)(i) of the Act, when, in response to a petition, we find that listing a species is warranted but precluded, we must make a new 12-month finding each year until we publish a proposed rule or make a determination that listing is not warranted. These subsequent 12-month findings are referred to as “resubmitted” petition findings.

On January 10, 1994, the Service received a petition dated January 1, 1994, from Ms. Dee E. Warenycia to list the seven above-mentioned species of swallowtail butterflies as threatened or endangered. As the basis for her petition, Ms. Warenycia cited the IUCN (World Conservation Union) Red Data Book, Threatened Swallowtail Butterflies of the World (Collins and Morris 1985), in which these species had been classified as Endangered, Vulnerable, or Rare. On May 10, 1994, the Service published a 90-day finding in the Federal Register (59 FR 24117) that the petition had presented substantial information indicating that the requested action may be warranted. In that notice, we initiated a status review of the seven butterflies covered by the petition, as well as 20 other butterfly taxa that were potentially of similar concern, and requested the submission of data and other information for preparation of a 12-month finding. This petition finding only covers the seven butterfly species that were the subject of the original petition. The other 20 species are potential candidate species that must be further evaluated, but for which any further action is currently precluded by higher-priority listing actions.

In response to our request for information in response to the 90-day finding, we received 14 responses from private citizens and public officials, both from the United States and abroad. Commenters addressed all but two of the seven species by name; the Fluminese swallowtail and Harris' mimic swallowtail were not specifically mentioned. One commenter supported the listing of the Jamaican kite swallowtail; one commenter supported the listing of the Kaiser-I-Hind swallowtail; and the remaining commenters opposed the listing of all of the species or the listing of specific butterflies. Species-specific information is discussed under the relevant species, below. Three main bases for opposition to the listing of these species were: (1) The paucity of status information; (2) disagreement over the effects of over-collection; and (3) an assertion that such listings impede conservation efforts. These issues are discussed below.

1. Paucity of status information: Several commenters noted that information in one of the references we had used (Collins and Morris 1985) is old, outdated, or not thoroughly scientific, and that the paucity of information provides an insufficient basis for listing. According to several swallowtail butterfly experts, the best sources of worldwide information continue to be Collins and Morris (1985) and New and Collins (1991), both of which were the sole sources of information used for the 1996 IUCN species assessments (Mariano Gimenez Dixon, Program Officer, Species Survival Commission, IUCN, pers. comm. 2004). Indeed, as discussed in our August 16, 2000, Federal Register finding (65 FR 49958), an IUCN designation alone does not provide sufficient information to address the factors that we must consider under section 4(a)(1) the Act. An extensive literature search has revealed that few recently published treatments exist for swallowtail butterflies. Most regional works were written a decade or more ago ( e.g. , Brown and Heineman 1972; Tyler et al. 1994). None of these seven species appears in the 2003 IUCN Red List of Threatened Species (IUCN 2003) because they have not been re-assessed against the 1997 criteria (M. Dixon, pers. comm. 2004). There is also currently no IUCN Lepidoptera Specialist Group. In an attempt to obtain the most current information for this finding, the Service also solicited information from each range country and from other domestic and international experts. Pursuant to section 4(b)(1)(A), we have evaluated the best scientific and commercial data available to make the determinations in this finding.

2. Effects of over-collection: Several commenter disagreed that over-collection of insects has a significant adverse impact and noted that it is nearly impossible for the entirety of a species' eggs, larvae, pupae, and adults to be collected at a given time. However, experts generally agree that species with restricted distributions are more apt to be affected by over-collection than those with wider distributions. Substantive information obtained from experts and publications on this issue has been incorporated into this assessment, as appropriate.

3. Such listings impede conservation efforts: Some commenters mentioned that listing might call undue attention to these rare butterflies, would create unnecessary restrictions on marketing, would impede further research, would provide no substantive conservation benefit, and would hinder butterfly ranching that actually benefits propagation and encourages local measures to protect the animals and their habitats. While most of these points are not statutory factors considered in listing species, we acknowledge that any substantive information that demonstrates how these factors mitigate the status of the species is useful, and where substantive information was provided, it has been considered as part of the status review.

The seven foreign butterfly species: Harris' mimic swallowtail, the Jamaican kite swallowtail, the Oaxacan swallowtail, the Fluminese swallowtail, Hahnel's Amazonian swallowtail, the southern tailed birdwing, and the Kaiser-I-Hind swallowtail, all of which are the subject of this petition, belong to the family Papilionidae (order Lepidoptera). The Papilionidae are generally known as swallowtail butterflies, or simply as swallowtails, and will herein be collectively referred to as such. Synonyms and common names are summarized in Table 1. Nomenclature follows Morris and Collins (1985).

The Lepidoptera life cycle begins with mating. Swallowtails may brood ( i.e. , produce offspring) once, twice, or several times per year. All Lepidoptera undergo complete metamorphosis and exhibit four distinct life stages: Egg, larva (caterpillar), pupa (chrysalis), and adult. Swallowtails reputedly maintain low population numbers and experience sporadic rebounds. Food sources vary widely. Caterpillars eat plant material (such as leaves) and may be generalists, enjoying a range of plant species, or they may be obligate feeders, feeding solely on a particular species. Adults typically feed on flower nectar. Some adults do not eat at all, others obtain nutrients from carrion, and some pre-reproductive males obtain nutrients from riversides (known as “puddling”). Swallowtails may display sexual dimorphism, wherein males are generally smaller and/or more colorful than females. Four of the petitioned species (Jamaican kite, Harris' mimic swallowtail, Fluminese swallowtail, and Southern tailed birdwing) are not sexually dimorphic; one species (Oaxacan swallowtail) displays only size dimorphism; and two species (Kaiser-I-Hind and Southern tailed birdwing) are dimorphic both in color and size. Similarly, larvae and adults may display color polymorphism, wherein the same species exhibits different color patterns. Swallowtails may exhibit certain behaviors to increase their chance of finding a mate. “Hilltopping,” for instance, is a male behavior in which they seek out a high ridge or hilltop whereupon they await the arrival of females, which tend to gravitate towards these areas. Swallowtails are all strong flyers. Many species fly several kilometers a day. After mating, females often disperse to find a new location to lay eggs. Some species disperse farther, sometimes as a group. Although dispersal is sometimes referred to as migration, for butterflies this movement may not entail a return trip. Where available, information on the lifespan, population dynamics, and current population status of each species are provided in the species assessments below.

Section 4(a)(1) of the Act (16 U.S.C. 1531 et seq. ) and regulations promulgated to implement the listing provisions of the Act (50 CFR part 424) set forth the procedures for adding species to the Federal Lists. A species may be determined to be endangered or threatened due to one or more of the following five factors described in section 4(a)(1): (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence. These factors and their application to each of the seven species are discussed below. Each assessment begins with a species-specific status summary.

The Oaxacan swallowtail is endemic to the remote montane cloud forest of Mexico's Jua rez Mountains (Oaxaca State). Larvae feed on Magnolia dealbata Zucc. (common name unknown) (Felipe Rami rez Ruiz de Velasco, Director General, Secretaria de Medio Ambiente y Recursos Naturales, pers. comm. 2004). Adults prefer Eupatorium sordidum Less. (dirty thoroughwort) and produce two annual broods, one in the spring and one in late summer (Collins and Morris 1985). Populations are restricted to steep-sloped canyons in the Jua rez Mountains (F.R.R. de Velasco, pers. comm. 2004; R. Robbins, pers. comm. 2004; Tyler et al. 1994). Considered a relict of modern swallowtails, this species was discovered only in 1975 and, for the first 20 years, was only known from one colony (New and Collins 1991; Tyler et al. 1994). New colonies were discovered in the early 1990s; the total habitat remains restricted to an area less than 100 square kilometers (Tyler et al. 1994). This species is listed as Vulnerable by the IUCN, due mainly to a poaching problem that existed prior to 1994 (IUCN 2003; see B., below).

A. Present or threatened destruction, modification, or curtailment of its habitat or range: The Jua rez Mountains region is generally threatened by logging, agriculture, grazing, colonization, and potential construction of hydroelectric dams (Da vila et al. n.d.); however, there is no evidence that this species' specific habitat is being directly threatened (R. Robbins, pers. comm. 2004; Jorge Sobero n, Director of CONABIO [the Scientific Authority of Mexico for the Convention on International Trade in Endangered Species of Wild Fauna and Flora, or CITES], pers. comm. 2004). Based on the best available information, we conclude that this species is not threatened by the present or threatened destruction, modification, or curtailment of its habitat or range.

B. Overutilization for commercial, recreational, scientific, or educational purposes: According to Collins and Morris (1985), only 20 specimens had been collected in the first 20 years after the species' discovery due to the fierce protection of this species by local communities. For a time, poaching became a problem because several local residents would follow the colony and remove specimens for commerce (Tyler et al. 1994). In the mid-1990s, several smugglers were indicted in the United States for trading in illegally collected insects, including Oaxacan swallowtails (WildlifeWebsite.com 2000). Today, Mexican experts do not consider over-collection to be a threat (F.R.R. de Velasco, pers. comm. 2004) because local communities do not allow collection or sale of the species (J. Sobero n, pers. comm. 2004). There are also regulatory mechanisms in place that appear to be effectively regulating trade in this species (see D., below). Thus, this species is not threatened by overutilization for commercial, recreational, scientific, or educational purposes.

C. Disease or predation: There is no information to suggest that this species is subject to any threat from disease or predation.

D. The inadequacy of existing regulatory mechanisms: The Oaxacan swallowtail is listed as threatened, and its larval foodplant, Magnolia dealbata, is also listed as endangered on Mexico's List of Species at Risk (F.R.R. de Velasco, pers. comm. 2004). Mexican law, NOM (Norma Oficial Mexicana)-059-ECOL-2001, protects listed native species of flora and fauna that have been assessed in any of four threat categories (threatened, endangered, specially protected, and likely to be extinct; INE 2003). There are no officially designated protected areas or nature reserves in the Jua rez Mountains (Da vila et al. n.d.). However, large tracts of Oaxacan swallowtail habitat are under the strict control of indigenous Zapotec communities (J. Sobero n, pers. comm. 2004), and these communities are very conservation oriented (F.R.R. de Velasco, pers. comm. 2004). The Mexican Federal government oversees several sustainable resource management units in that region (de Ferranti et al. 2000), and this species is not one of the resources being exploited under this regulatory framework (F.R.R. de Velasco, pers. comm. 2004).

The Oaxacan swallowtail is not listed in the Appendices of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), but there is no information to suggest that such a listing is needed. Considered threatened by commercial trade in Europe (Melisch 2000), this species is now listed on Annex B of the European Union's Council Regulation (EC) No. 338/97, which regulates imports of certain species into any country in the European Community. Annex B includes all species listed in CITES Appendix II and their look-alikes, as well as species being traded at levels that are incompatible with the survival of the species, as well as species that pose a threat to native species (CITES UK 2004). Import of an Annex B-listed species must be accompanied by information that demonstrates that the import will not detrimentally affect the conservation status of the species or its habitat (Eur-Lex 2004). Based on the above information, this species is not threatened by the inadequacy of existing regulatory mechanisms.

E. Other natural or manmade factors affecting its continued existence: There are no other known threats affecting this species.

In summary, in addition to the discovery of new populations, the Oaxacan swallowtail is not subject to significant threats that cause the species to be threatened with extinction throughout a significant portion of its range. Therefore, we have determined that listing of this species is not warranted.

The southern tailed birdwing is native to lowland primary or secondary rainforests of Indonesia and Papua New Guinea. The larvae of this genus are known to feed solely on Aristolochia spp. L. (birthwort). However, the identity of the specific larval foodplant of this species remains in dispute (Parsons 1999; Dr. Wari Iamo, Department of Environment and Conservation, Papua New Guinea, pers. comm. 2004). This birdwing butterfly occupies a wide range, but populations are localized, found at altitudes between 20 and 200 meters above sea level (Collins and Morris 1985; Dr. Wari Iamo, Department of Environment and Conservation, Papua New Guinea, pers. comm. 2004). In Indonesia (Irian Jaya), there are three known localities of this species (Parsons 1999). In Papua New Guinea, there are at least seven widely distributed localities, and the species appears to be reasonably common in its habitat, especially in the spring (Parsons 1999; W. Iamo, pers. comm. 2004). It is listed by the IUCN as Endangered, apparently due to threats from habitat destruction (see A., below; IUCN 2003).

A. Present or threatened destruction, modification, or curtailment of its habitat or range: The southern tailed birdwing populations are found in two protected areas in Papua New Guinea where wildlife harvest and habitat destruction are prohibited (W. Iamo, pers. comm. 2004). The species' low-lying habitat, in the center of its range, is vulnerable to timber extraction (W. Iamo, pers. comm. 2004). However, experts believe that properly managed butterfly farming (as discussed below, under B.) promotes habitat conservation by generating income as a viable alternative to deforestation (Dr. Rosser W. Garrison and Mr. Michael Parsons, Research Associates, Los Angeles County Museum of Natural History, California, pers. comm. 1994; Dr. L. Orsak, Director, Christensen Research Institute, Papua New Guinea, pers. comm. 1994; Dr. Scott Miller, Chair, Natural Science, The State Museum of Natural and Cultural History, Hawai'i, pers. comm. 1994; Parsons 1991, 1999). The Papua New Guinea farming program requires villagers to maintain a healthy wild population on or near their land (IFTA 1985). Based on the best available information, we have determined that this species is not threatened by the present or threatened destruction, modification, or curtailment of its habitat or range.

B. Overutilization for commercial, recreational, scientific, or educational purposes: Papua New Guinea began farming the southern tailed birdwing and other native butterflies in 1978. According to the non-profit Insect Farming and Trade Agency (IFTA), established in consultation with an entomologist-ecologist, the pupae are ranched and adults are sold in pairs (IFTA 2004; Parsons 1999). The Papua New Guinea farming program was endorsed by the now-defunct IUCN Lepidoptera Specialist Group (IFTA 1985). Ranched specimens are often preferred over wild-caught specimens because the wings of wild specimens are often tattered from flying (Parsons 1999). No wild-collected specimens are permitted in international trade, and designated exporters are strictly controlled (W. Iamo, pers. comm. 2004; Iamo Ila, Conservator of Fauna, Department of Environment and Conservation, Papua New Guinea, pers. comm. 1994; 1997; Gaikovina R. Kula, Acting Secretary, Department of Environment and Conservation, Papua New Guinea, pers. comm. 1994). Private citizens who are not part of IFTA must obtain certification from the Department of Environment and Conservation to carry out ranching and trading in this species (W. Iamo, pers. comm. 2004).

This species has been listed in CITES Appendix II since 1979, and CITES data suggest a recent downward trend in trade volume, from 582 specimens in 2000, to 163 specimens in 2001, and 89 specimens in 2002 (J. Caldwell, pers. comm. 2004; W. Iamo, pers. comm. 2004). All of this trade has originated from Papua New Guinea, and most of it has been recorded as ranched specimens. A 2000 market study revealed that this species was threatened by commerce in Germany (Melisch 2000), where the market price was reportedly US$8700 per pair (Schu tz 2000). The southern tailed birdwing is now listed on the European Commission's Annex B, which regulates imports of certain species into Europe, and requires that trade in these species is not detrimental to the survival of wild populations (see Oaxacan swallowtail, D.). While the reason for the decrease in trade volume for this species is unknown (W. Iamo, pers. comm. 2004), its listing on Annex B may account for the decrease in trade because several of the major importers are from European countries. This information suggests that this species is not threatened by overutilization for commercial, recreational, scientific, or educational purposes.

C. Disease or predation: Parasitic flies have been known to attack southern tailed birdwings in the wild (Collins and Morris 1985). However, there is no specific information to suggest that these parasites are currently threatening existing populations, and we are unaware of any other disease or predators that pose a threat to this species. Thus, we conclude that disease or predation is not a current threat to this species.

D. The inadequacy of existing regulatory mechanisms: In 1966, Papua New Guinea declared the southern tailed birdwing protected under the Fauna Protection Control Act, which requires an amendment to the legislation to allow any controlled utilization of the species. Wild collection is prohibited, and wild-collected specimens are banned from international trade (W. Iamo, pers. comm. August 2004; G.R. Kula, pers. comm.; 1994 Parsons 1991). Only properly CITES-permitted adults are allowed in international trade (IFTA 2004), and import of these specimens into Europe requires a further non-detriment finding in addition to the CITES findings made by exporting countries (see D., above). Based on the above information, this species is not currently threatened by the inadequacy of existing regulatory mechanisms.

E. Other natural or manmade factors affecting its continued existence: There is no information to suggest that this species is subject to threats other than those listed above.

In summary, in addition to the discovery of new populations, the southern tailed birdwing is not subject to significant threats that cause the species to be threatened with extinction throughout a significant portion of its range, and therefore we have determined that listing of this species is not warranted.

Harris' mimic swallowtail is native to sub-coastal woods on unflooded fringes of “restinga” (swamp) habitat in the Atlantic Forest of Brazil. Paraguay also has been reported as a range country (Collins and Morse 1985; Funet 2004), but there is no information on colonies there. Larvae feed on Annona acutifolia Sass. ex R.E. Fries (common name unknown). Juveniles are occasionally reported on Rollinia laurifolia Schltdl. (common name unknown). Adults feed on species in a variety of genera from several plant families (including Annonaceae [custard-apple family], Asteraceae [daisy family], Fabaceae [legume family], Rubiaceae [madder family], and Verbenaceae [verbena family]). This subspecies is not listed in the 2003 IUCN Red List of Threatened Species (IUCN 2003).

Previously reported in the two Brazilian states of Espirito Santo and Rio de Janeiro, this subspecies is confirmed only in the latter locality (Brown 1996). This has been interpreted as an indication that the subspecies has been extirpated from Espirito Santo (Collins and Morse 1985; Xerces 2004). However, Brown postulates that this could be due to misidentification due to mimicry (Keith S. Brown, Jr., Livre-Docent, Universidade Estadual de Campinas, Brazil, pers. comm. 2004). Swallowtails occupying similar ranges may exhibit mimicry such that unrelated species resemble each other. The specific purpose of this mimicry is unknown, but it may be a defense mechanism. Although scientifically unproven, one form of mimicry, known as Batesian mimicry, consists of a palatable species (the mimic) that resembles an unpalatable species (the model). It is theorized that a predator (such as a bird) attempting to eat the unpalatable model will avoid that and other similar-looking butterflies in the future. For such mimicry systems to be effective, it is generally believed that the mimic must maintain lower population numbers than the model.

Harris' mimic swallowtail is polymorphic, mimicking at least three species of Parides throughout its range. There are two Harris' mimic swallowtail morphs (color patterns): the sebastianus-rurik morph, which mimics Parides zacynthus Fabricius (common name unknown) and the subspecies Parides nephalion Godart (cattle heart swallowtail); and, the ascanius morph, which mimics the Fluminese swallowtail, also a subject of this petition finding (Collins and Morse 1985; K.S. Brown, Jr., pers. comm. 2004). The sebastianus-rurik morph is less common than the ascanius morph, the latter of which constituted about 70% of the population during a nearly decade-long mark-recapture study (Brown 1996). The ascanius morph generally persists farther north than the Fluminese swallowtail. Thus, it is possible that Harris' mimic swallowtail exists to the north, in Espirito Santo, where suitable habitat exists, but that it has been mistaken for the Fluminese swallowtail (Brown 1991; Otero and Brown 1984; Dr. Robert Robbins, Research Entomologist, National Museum of Natural History, Department of Entomology, Smithsonian Institution, Washington, DC pers. comm. 2004).

Brown (1996) monitored the only known colony of the species (in Rio de Janeiro) from 1984 to 1991, during which time the population size ranged from 50 to 250 individuals. Adults fly at an elevation of 1000 meters, and brood only once per year, being found almost exclusively from September to December. This colony is currently reported to be viable, vigorous, and stable (K. Brown, Jr., pers. comm. 2004). In 1997, another colony of unknown size was discovered in the Poco das Antas Biological Reserve (Rio de Janeiro), where it had not been seen in 30 years. According to Brown, it is likely that more colonies exist between these two known localities and in other places, and he further states that their flight habits “do not favor recording by visitors * * * it is also very hard to find, see, or capture” (K. Brown, Jr., pers. comm. 2004).

A. Present or threatened destruction, modification, or curtailment of its habitat or range: Habitat destruction prompted experts to consider this species to be either endangered (Collins and Morris 1985; Tyler et al. 1994) or critically endangered (Brown 1996). The mix of dense and open habitat preferred by adult Harris' mimic swallowtails is no longer the dominant vegetation type in Rio de Janeiro. With this habitat almost entirely gone, the subspecies is found only in sub-coastal areas adjacent to “restinga” (swamp) habitat (Otero and Brown 1984). Considered the most endangered vegetation type in the world (Conservation International 2004), restinga swampland has been converted to rice fields and drained for urban development and cattle pastures (Otero and Brown 1984; WWF 2004a). In 1985, development threatened the only known colony (Collins and Morris 1985). The State of Rio de Janeiro harbors the densest human population in Brazil, and the city suffers from air and water pollution (CIA 2004; Conservation International 2004). The Poco das Antas Reserve (site of the recently discovered colony of Harris' mimic swallowtail) is plagued by fires. Established in 1973 and presently encompassing an area of approximately 6,883 square meters (WWF 2004b), the Reserve has suffered at least six fires since 1989 (Anonymous 1997; Bryant 2002; Kyodo World Service 2000; Reuters 2002; Singapore National Zoo 2000). At least two of these fires were attributed to human causes (Anonymous 1997; Kyodo World Service 2000). Fire breaks have been constructed in the Reserve to help contain future fires, but regeneration of previously burned areas has been reportedly slow (Singapore National Zoo 2000). Thus, we conclude that this subspecies is threatened by the present or threatened destruction, modification, or curtailment of its habitat or range throughout a significant portion of its range, although thus far we are not aware of a direct impact on the two known colonies of this species.

B. Overutilization for commercial, recreational, scientific, or educational purposes: There is no documentation of overutilization of this subspecies. However, it is possible that this species is inadvertently entering trade misidentified as Parides spp., although there is no specific information on this.

C. Disease or predation: There is no information to suggest that this species is subject to any threat from disease or predation.

D. Inadequacy of existing regulatory mechanisms: Instituto Brasileiro do Meio Ambiente de dos Recursos Naturais Renova veis; Brazil's Environmental Ministry (IBAMA) listed this species as “strictly protected” in 1989. As such, collection and trade are prohibited (Brown 1996). It is unclear whether the discovery of a second colony in the Poco das Antas Biological Reserve, home of the charismatic golden lion tamarin ( Leontopithecus rosalia ), will benefit Harris' mimic swallowtail. The Reserve continues to be threatened by inadequate protection, unresolved land disputes, and illegal encroachment by landless peasants (Conservation International 2004). In 2002, criteria were established for land use and occupation within a newly established environmentally protected basin along the river where the new population of this species was found. How or whether these criteria account for invertebrates is unknown (WWF 2004b). Thus, the regulatory mechanisms in existence may be inadequate to protect this species.

E. Other natural or manmade factors affecting its continued existence: Other than the above-mentioned fires, some of which may have been natural events, there are no other factors known to affect this species' continued existence.

In summary, although additional populations may exist, there are only two confirmed localities of Harris' mimic swallowtail. This subspecies appears to be generally threatened by habitat destruction (clearing and fire) and the potential of overutilization for commercial purposes. While regulatory mechanisms are in place to control commercial trade, it is unclear whether existing regulatory mechanisms are adequately protecting the species' habitat. The combination of these factors threatens this subspecies throughout a significant portion of its range.

Harris' mimic swallowtail is a subspecies that faces threats that are low to moderate in magnitude and non-imminent. It therefore receives a priority rank of 12.

The Jamaican kite is endemic to Jamaica. The only known larval foodplant is Oxandra lanceolata Baill. (West Indian lancewood) (Bailey 1994; Brown and Heineman 1972; Garraway et al. 1993; Xerces 2004). There is no information as to adult food preferences. Despite the presence of the larval foodplant throughout the island, and although the species probably disperses only within 3 kilometers of its breeding site, the only confirmed breeding site is Rozelle, located in the extreme southeastern Parish of St. Thomas (Bailey 1994; Brown and Heineman 1972; Garraway et al. 1993; R. Robbins, pers. comm. 2004; Strong and Johnson 2001; WRC 2001; Dr. T.W. Turner, President, Caribbean Surveys Ltd., Florida, pers. comm. 1994). Reputedly unpredictable and sporadic in appearance, the Jamaican kite swallowtail generally maintains low population levels, but becomes locally abundant for a week or two at its only known breeding site, where it regularly broods in the early summer and sometimes again in early fall (Collins and Morris 1985; Garraway et al. 1993; Smith et al. 1994). Episodic population explosions have been recorded, with large westerly migrations of males when population numbers are high (Brown and Heineman 1972; Collins and Morris 1985; Garraway et al. 1993). Large numbers were reported in western parishes in the 1940s and 1950s (Bailey 1994; Garraway et al. 1993). Adults have recently been sighted in the parishes of St. Andrew, St. Ann, Trelawny, and Westmoreland on the extreme western coast, and the species has reportedly visited Florida (Bailey 1994; Funet 2004; Smith et al. 1994; WRC 2001).

A. Present or threatened destruction, modification, or curtailment of its habitat or range: Mining operations, deforestation, and a lack of public awareness for conservation issues are problematic on the entire island (WWF 2001). The only confirmed breeding site has undergone extensive habitat destruction for agriculture and industry, prompting many experts to designate the Jamaican kite swallowtail as Vulnerable (Collins and Morris 1983; IUCN 2003; New and Collins 1991; Tyler et al. 1994). The larval hostplant, West Indian lancewood (native to Jamaica, Cuba, Hispaniola, and Puerto Rico), is a commercially desirable tree. Its yellow wood is used to make fishing rods, pool cues, and other products (Windsor Plywood 2004). This tree species reportedly does poorly in disturbed habitats (Collins and Morris 1985). Habitat destruction continues to be a primary threat to this species (Dr. Audette Baillie, Research Fellow, Department of Life Sciences, University of the West Indies, Jamaica, pers. comm. 2004).

B. Overutilization for commercial, recreational, scientific, or educational purposes: A survey of German markets concluded that this species is threatened by commercial trade (Melisch 2000). Schütz (2000) reported the asking price for a female Jamaican kite swallowtail as US$150. This species is neither listed under CITES nor on the European Commission's Annex B, both of which regulate international trade. The Jamaican kite swallowtail is not bred in captivity and, in particular, there is no organized captive-breeding program for this species in Jamaica (A. Baillie, pers. comm. 2004). Thus, overutilization for commercial purposes may be a threat to the Jamaican kite swallowtail.

C. Disease or predation: There is no information to suggest that this species is subject to any threat from disease or predation.

D. Inadequacy of existing regulatory mechanisms: Listed as an endemic species, Jamaica does not consider the Jamaican kite swallowtail to be threatened, and therefore, it is not protected by the Wildlife Protection Act of 1998 (NEPA 2004a); according to the National Environment and Planning Agency (NEPA), this protects only “specified species” (NEPA 2004b). However, all requests to collect endemic wildlife in Jamaica must be directed to NEPA for approval (A. Baillie, pers. comm. 2004). The protected area network has been plagued with staff shortages and inadequate fines for violators (WWF 2001). The John Crow Mountains, spanning several parishes where adult Jamaican kite swallowtails have been seen, was declared a protected area in 1993 (Anonymous n.d.). Cockpit Country, the terrain of which has made it veritably impenetrable to humans, became part of the Parks-in-Peril project in 2001. Cockpit Country is located in Trelawny Parish, where adult Jamaican kite swallowtails have recently been sighted. The status of the species in this area may be clarified as researchers conduct surveys for the CITES Appendix-I swallowtail ( Pterourus homerus ) occupying the same area (TNC 2004; WRC 2002). The presence of the Jamaican kite swallowtail in Rozelle and Cockpit Country has prompted NEPA to seek protected-area status for both locations within the next 5-7 years (Anonymous 2003). It is unclear how or whether the Jamaican protected-area network benefits the Jamaican kite swallowtail or protects it from the above-mentioned potential threats of habitat loss and commercial utilization.

E. Other natural or manmade factors affecting its continued existence: Jamaica lies within the Atlantic hurricane belt and is subject to severe tropical weather, such as tropical waves, tropical depressions, tropical storms, and hurricanes (Mahlung 2001). In the last 16 years, Jamaica has been devastated by a tropical storm (George 1998), a Category 3 hurricane (Gilbert 1988), and two Category 5 hurricanes (Mitch 1998; Ivan 2004). Hurricanes Gilbert and Ivan caused extensive damage throughout the island, including Rozelle, the only known breeding site for this species. In 1989, 75 percent of Rozelle Beach was eroded, and extensive beach erosion occurred again in 2004 (Anderson 1989; Lehman 1999; Go Local Jamaica 2004). These stochastic events are likely to have an adverse effect on this species' continued existence.

In summary, the Jamaican kite swallowtail has only one known breeding site. This species is threatened by habitat destruction from human activity and catastrophic natural storm events. Storms, such as hurricanes, can also directly kill these butterflies. The species is also potentially threatened by collection and inadequate protection of its habitat; this species is not specifically protected by law. The combination of these factors potentially threatens this species throughout a significant portion of its range.

The Jamaican kite swallowtail is a species that does not represent a monotypic genus. It faces threats that are high in magnitude, but non-imminent. It therefore receives a priority rank of 5.

The Fluminese swallowtail is endemic to Brazil. Residing in “restinga” (swamp) habitat in the Atlantic Forest of Brazil, adults can be found flying in scrubby to urbanized locations (K.S. Brown, Jr., pers. comm. 2004). The only known larval foodplant is the poisonous vine Aristolochia macroura Gomez (Dutchman's pipe), which has a wider distribution than the butterfly itself (Otero and Brown 1984). There is no information as to adult foodplant preferences. This species has been reported from three Brazilian States: Rio de Janeiro, Espirito Santo, and Sao Paulo. Although ideal habitat exists in all three States, Rio de Janeiro harbors the only colonies confirmed in the past 50 years (Otero and Brown 1984), perhaps due to mislabeling of initial collections (K.S. Brown, Jr., pers. comm. 2004). Assessed by the IUCN as Vulnerable, the species is sparsely distributed at best, becoming seasonally common, with sightings of up to 50 individuals in one morning (IUCN 2003; Otero and Brown 1984; Tyler et al. 1994).

Populations are localized but colonies require a large area to maintain a viable population (Otero and Brown 1984). In a study conducted from 1984 to 1991, Brown (1996) found that a colony varied greatly (from 20 to 100 individuals) from year to year, and individuals flew distances of 1000 meters. Although it was presumed that many populations had gone extinct since 1970 and that no new colonies remained to be discovered, other large colonies have been found in Rio de Janeiro state, both far inland and within the Poco das Antas Biological Reserve (K.S. Brown, Jr., pers. comm. 2004; Collins and Morris 1985; Otero and Brown 1984). In a recent visit to Poco das Antas, Dr. Robert Robbins (pers. comm. 2004) reported that the Fluminese swallowtail was “everywhere.” All colonies continue to be monitored (K.S. Brown, Jr., pers. comm. 2004).

A. Present or threatened destruction, modification, or curtailment of its habitat or range: The range of this species overlaps with Harris' mimic swallowtail, and the restinga swampland habitat upon which the Fluminese swallowtail depends for breeding is threatened by urbanization, conversion for cultivation and cattle ranching, and arson (see Harris' mimic swallowtail, A., above). The Fluminese swallowtail is particularly threatened by arson in the Poco das Antas Biological Reserve, because this is the only protected area large enough to maintain a viable Fluminese swallowtail colony (Otero and Brown 1984). Thus, a significant portion of this species' range is potentially threatened with habitat destruction.

B. Overutilization for commercial, recreational, scientific, or educational purposes: This butterfly is “easy to catch,” and although “many people have bred the species,” there is no formal effort to ranch the species (K.S. Brown, Jr., pers. comm. 2004). A survey of German markets reported female Fluminese swallowtails selling for US$560 (Melisch 2000; Schütz 2000), which is an indicator of the potential threat from commercial trade. This species is advertised for sale in Japan with the provision that no sales can be made of dry or live insects to the “United States of America from Central and South America also CITES butterflies” ( http://www.worldinsect.com/ ). This species is not listed under CITES but is listed on the European Commission's Annex B, which regulates imports of certain species into Europe (see Papilio esperanza, B.). It is unclear how this has affected trade in this species. Based on the above information, this species is potentially threatened by overutilization for commercial purposes.

C. Disease or predation: There is no information to suggest that this species is subject to any threat from disease or predation.

D. Inadequacy of existing regulatory mechanisms: In 1973, the Fluminese swallowtail became the first insect placed on Brazil's list of animals threatened with extinction, and the species is currently considered imperiled by IBAMA, the Brazilian Environment Ministry (MMA 2004; Otero and Brown 1984). Although the species is strictly protected from commerce, fines are apparently either nonexistent or too nominal to dissuade commercial collection (K.S. Brown, Jr., pers. comm. 2004). It is also unclear what measures have been taken to reduce habitat destruction, for which the species was originally listed in 1973 (Otero and Brown 1984). The protection afforded Fluminese swallowtail populations within Poco das Antas Biological Reserve is also unknown (see Harris' mimic swallowtail, D.). Thus, the regulatory mechanisms in existence may be inadequate to protect this species.

E. Other natural or manmade factors affecting its continued existence: Other than the fires, mentioned above, some of which may have been natural events, there are no other factors known to affect this species' continued existence.

In summary, there are several known Fluminese swallowtail colonies, each requiring a large area to maintain a viable population, and only one occurs within a protected area. This species is threatened by habitat destruction and the potential inadequacy of regulatory mechanisms to protect the species' habitat, particularly in the Poco das Antas Biological Reserve, considered the only protected area large enough to maintain a viable population. This species is also potentially threatened by overutilization for commercial purposes and inadequate penalties to thwart commercial collection. The combination of these factors potentially threatens this species throughout a significant portion of its range.

The Fluminese swallowtail is a species that does not represent a monotypic genus. It faces threats that are high in magnitude but non-imminent. It therefore receives a priority rank of 5.

Hahnel's Amazonian swallowtail is endemic to three localities in the sandy tributaries of the lower middle Amazon Basin in Brazil (Collins and Morris 1985; New and Collins 1991; Tyler et al. 1994). The identification of the larval hostplant is unknown, but it is believed to be either Aristolochia lanceolato-lorato S. Moore (common name unknown) or A. acutifolia Sass. ex R.E. Fries (common name unknown). This species occupies a fairly wide range, but “the area of its range is very lightly populated” (K.S. Brown, Jr., pers. comm. 2004). The restricted nature of its habitat was determined only in the 1990s (R. Robbins, pers. comm. 2004). Populations are characterized as very local, rare, and patchy in distribution (Collins and Morris 1985; Tyler et al. 1994). Until 1973, this species was known only in one location; two additional localized colonies were discovered in 1973 (Brown 1996; Collins and Morris 1985). There have been no recent discoveries of new populations (K.S. Brown, Jr., pers. comm. 2004). This species is sympatric (occupies the same range) with several butterflies, including at least two, Methona and Thyrides (common names unknown), that it reportedly mimics, and the subspecies Parides chabrias ygdrasilla (common name unknown)(Brown 1996). In 1996, when this species was last assessed by the IUCN, there was insufficient data to determine its status (IUCN 2003).

A. Present or threatened destruction, modification, or curtailment of its habitat or range: Citing potential threats from habitat destruction, New and Collins (1991) considered the possibility that this species was critically threatened. Because the species' ecological requirements are not well understood, habitat destruction could be a factor, but specific threats cannot be clearly identified. Therefore, we are unable to determine whether this species is or may be threatened by habitat destruction.

B. Overutilization for commercial, recreational, scientific, or educational purposes: Although the species flies high, making it harder to catch, “local people can at times effectively reduce populations since they know [this species'] habits'-(K.S. Brown, Jr., pers. comm. 2004). Many experts agree that species with restricted distributions or localized populations, such as Hahnel's Amazonian swallowtail, are more vulnerable to over-collection than those with a wider distribution (K.S. Brown, Jr., pers. comm. 2004; R. Robbins, pers. comm. 2004). Commercial exploitation is a potential threat to this species (Melisch 2000; New and Collins 1991; Schütz 2000; Tyler et al. 1994). A survey of German markets found swallowtails to be among the most popular species being sold; Hahnel's Amazonian swallowtail has sold for USD$200 per pair (Schütz 2000). The species is not listed under CITES. It is listed on the European Commission's Annex B, which regulates imports of certain species into Europe (see Papilio esperanza, B.), but it is unclear how this listing has affected trade in this species. As such, we believe that overutilziation for commercial purposes may constitute a threat to the survival of the species.

C. Disease or predation: There is no information to suggest that this species is subject to any threat from disease or predation.

D. Inadequacy of existing regulatory mechanisms: Hahnel's Amazonian swallowtail is listed as a species “under study” (Brown 1996). It is not listed on the Brazilian list of animals threatened with extinction (MMA 2004). This may be due to the species' wide range and tendency to be locally common (K.S. Brown, Jr., pers. comm. 2004).

E. Other natural or manmade factors affecting its continued existence: There is potential for foodplant competition with a sympatric butterfly, Parides chabrias ygdrasilla (common name unknown) (Collins and Morris 1985).

Hahnel's Amazonian swallowtail is known from only three localities and consists of highly localized populations, which makes them potentially vulnerable to over-collection.

Hahnel's Amazonian swallowtail is a species that does not represent a monotypic genus. It faces threats that are low to moderate in magnitude, and the immediacy of the threat is non-imminent. Therefore, it receives a priority rank of 11.

The Kaiser-I-Hind swallowtail is native to the Himalayan regions of Bhutan, China, India, Laos, Myanmar, Nepal, Thailand, and Vietnam. Preferring undisturbed montane deciduous forests, this fast-flying species flies near the treetops at altitudes of 1500-3050 m (Bond 1964; Igarashi 2001; Tordoff et al. 1999). The larval foodplant may differ across the species' range, including Magnolia campbellii Hook.f. and Thompson in China (Yen and Yang 2001); Magnolia spp. L. in Vietnam (Funet 2004); Daphne spp. L. in India, Nepal, and Myanmar (Funet 2004); and Daphne nipalensis (authority and common name unknown) in India (Robinson et al. 2004). Though this species was first described in 1843, its life history was not well characterized until 1986 (Igarashi and Fukuda 2000). The Kaiser-I-Hind swallowtail produces two broods per year (spring and late summer) (Igarashi 2001). Females are much larger and rarer than males (Bond 1964).

The species' range is larger today than known at the time of the original petition, with confirmed reports in Laos, Thailand, and Vietnam (FAO 2001; Igarashi 2001; Masui and Uehara 2000; Osada et al. 1999). The range of the Kaiser-I-Hind swallowtail overlaps with that of its close relative, the golden Kaiser-I-Hind swallowtail ( Teinopalpus aureus ) in Laos and Vietnam. The golden Kaiser-I-Hind swallowtail, which is listed in CITES Appendix II, is generally larger than the Kaiser-I-Hind swallowtail (Masui and Uehara 2000; Igarashi 2001). The IUCN lists the Kaiser-I-Hind swallowtail in the category of least concern (IUCN 2003), but it is considered “rare” by Collins and Morris (1985) and Tyler et al. (1994). Despite its widespread distribution, local populations are not abundant (Collins and Morris 1985). The actual population status in Bhutan, India, Laos, Myanmar, and Thailand is unknown, although it has been confirmed to be extant in Nepal, Thailand, and Vietnam. No butterflies are listed on the 1992 Red Data Book of Vietnam (Trai and Richardson 1999). In 1994, Chinese experts considered the species to be in “immediate danger of extinction,” with no verified occurrences in half a century (Professor Wang Sung, Executive Vice Chairman of the Endangered Species Scientific Commission of China, pers. comm. 1994). However, recent publications indicate that the species remains extant in China, although there is no information on population status (Pai and Wang 1998; Pai et al. 1996; Watanabe 1997; Yen and Yang 2001).

A. Present or threatened destruction, modification, or curtailment of its habitat or range: Despite a Chinese moratorium on logging in 1999, Kaiser-I-Hind swallowtail populations continued to be threatened by commercial and illegal logging in 2001 (Yen and Yang 2001). In Nepal, the species is threatened by limestone mining activities (E-Law 2002), and a recent report to by the Nepal Forest Ministry considers habitat destruction to be a critical threat to biodiversity, including this species (HMGN 2002). In Vietnam, the species is confirmed in three Nature Reserves, in areas where disturbance levels are low (Lien 2003; Tordoff et al. 1999; Trai and Richardson 1999). Habitat degradation (deforestation and land conversion) is a primary threat to this species in Thailand (FAO 2001). Thus, this species is known to be threatened by habitat destruction in some of its countries.

B. Overutilization for commercial, recreational, scientific, or educational purposes: The Kaiser-I-Hind swallowtail was listed in CITES Appendix II in 1987 and is listed in Annex B of the European Union's Council Regulation (see Oaxacan swallowtail, D.). CITES trade data, obtained from the World Conservation Monitoring Centre, indicate that only 152 Kaiser-I-Hind swallowtail specimens were traded between 1991 and 2002, and originated primarily from China (John Caldwell, WCMC, pers. comm. 2004). Nearly half of these were imported into the United States, all originating from China and declared as wild-collected. In a 3-month period (June-August 2004), a dealer in China sold 23 unmounted specimens: 4 to one buyer in Germany and the rest to buyers in the United States. The average selling price was US$107 for females and US$45 for males. This commercial activity could not be compared with CITES trade data because the 2004 CITES data will not be available until October 31, 2005. The Kaiser-I-Hind and golden Kaiser-I-Hind swallowtails resemble each other and both are commercially valuable. The species' ranges overlap in at least two, possibly three, range countries, so there is a potential for both species to be collected due to their resemblance to each other.

There are unconfirmed reports that this species is being captive-bred in China (Yen and Yang 2001), where it is considered to be more valuable than the southern tailed birdwing (Watanabe 1997). In Nepal, collectors would commonly lie in wait for the butterflies in mountaintop encampments (New and Collins 1991). According to the Nepal Forestry Ministry, the high commercial value of endangered species on the local and international market may result in local extinctions of many of Nepal's most endangered plants and animals, including this species (HMGN 2002). Unsustainable collection (for consumption or souvenirs) is a primary threat to this species in Thailand (FAO 2001). Thus, overutilization for commercial purposes threatens this species throughout a significant portion of its range.

C. Disease or predation: There is no information to suggest that this species is subject to any threat from disease or predation.

D. Inadequacy of existing regulatory mechanisms: The Kaiser-I-Hind swallowtail is not protected under the Wildlife Conservation law of Taiwan (Yen and Yang 2001). In Nepal, where it is listed as threatened, the species is protected by the National Parks and Wildlife Conservation Act of 1973 (HMGN 2002). Protective legislation in India and Nepal has previously been considered ineffective (New and Collins 1991). In Thailand, the Kaiser-I-Hind swallowtail is listed under the 1992 Wildlife Reservation and Protection Act of 1992, which makes it illegal to collect (whether wild or dead) or to have the species in one's possession (FAO 2001). Despite regulation in international trade by CITES and on Annex B in Europe, we believe that this species is threatened by a lack of specific regulatory mechanisms for the species itself as well as its habitat throughout a significant portion of its range.

E. Other natural or manmade factors affecting its continued existence: A review of the available information did not indicate that this species was threatened by other factors.

In summary, the Kaiser-I-Hind swallowtail is a wide-ranging species that is experiencing varying degrees of threat throughout its range. There is potential for habitat destruction in at least four range countries, and collection for commercial purposes is reported throughout its range. However, regulatory mechanisms may not be adequately protecting the species from these threats. The combination of these factors potentially threatens this species throughout a significant portion of its range.

The Kaiser-I-Hind swallowtail does not represent a monotypic genus. It faces threats that are low to moderate in magnitude and imminent. It therefore receives a priority rank of 8.

The Service has carefully assessed the best scientific and commercial information available regarding the present and future threats facing the seven foreign butterfly species in this petition. Based on our review, we find that two species, the Oaxacan swallowtail and southern tailed birdwing, do not warrant listing under the Act because, as summarized above for each of these species, new populations have been discovered and neither species is subject to significant threats that cause the species to be threatened with extinction throughout a significant portion of its range. Further, both are strictly protected within their respective ranges. Thus, this determination of not warranted for these two butterfly species constitutes the agency's final action on these species at this time. However, we request that you submit any new information for these species concerning status and threats whenever it becomes available. This information will help us monitor the status of these species and encourage their conservation.

We also find, as discussed above, that the remaining five species, Harris' mimic swallowtail, the Jamacian kite swallowtail, the Fluminese swallowtail, Hahnel's Amazonian swallowtail, and the Kaiser-I-Hind swallowtail, warrant listing as threatened. However, the publication of a proposed rule to list these species remains precluded by other higher-priority listing actions. Section 4(b)(3)(B)(iii) of the Act indicates that the Service may make warranted-but-precluded findings with regard to cases in which (1) an immediate proposed rule is precluded by higher-priority proposals to list species as endangered or threatened, and (2) expeditious progress is being made on other listing measures. Expeditious progress in listing endangered and threatened species is being made, and our progress on listing species previously found to be warranted but precluded is reported annually in the Federal Register . Our most recent annual notice on these 12-month “resubmitted” petition findings on foreign species was published on May 21, 2004 (69 FR 29354). We published a complete description of our listing priority system on September 21, 1983 (48 FR 43098). The listing priority number for each of the five butterfly species found to be warranted but precluded is presented in Table 1. Other foreign species, comprising a large number of birds covered by petitions received in 1980 and 1991, have listing priority numbers that are equal to or higher than those of at least some of the butterflies.

As required by Section 4(b)(3)(C)(i) of the Act, the Service will reassess the warranted-but-precluded finding when we publish our annual notice on resubmitted petition findings for foreign species. The Service seeks data and comments from the public on this petition finding. We will continue to monitor the status of these species as new information becomes available. Our review of any new information received will determine if a change in status is warranted, including the need to list any species on an emergency basis.

A complete list of all references cited in this petition finding is available on request from the Division of Scientific Authority ( see ADDRESSES section).

The primary author of this document is Dr. Patricia De Angelis, Division of Scientific Authority, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Room 750, Arlington, Virginia 22203.

The authority for this action is the Endangered Species Act (16 U.S.C. 1531 et seq. ).

The groundfish fisheries in the exclusive economic zone of the Bering Sea and Aleutian Islands management area (BSAI) are managed under the FMP. The North Pacific Fishery Management Council (Council) prepared the FMP under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801, et seq. Regulations implementing the FMP appear at 50 CFR part 679. General regulations governing U.S. fisheries also appear at 50 CFR part 600.

The Council has submitted Amendment 82 for review by the Secretary of Commerce, and a Notice of Availability of the amendment was published in the Federal Register on November 16, 2004 (69 FR 67107), with comments on the amendment invited through January 18, 2005. Comments may address the FMP amendment, the proposed rule, or both, but must be received by January 18, 2005, to be considered in the approval/disapproval decision on the FMP amendment. All comments received by that time, whether specifically directed to the FMP amendment or to the proposed rule, will be considered in the approval/disapproval decision on the FMP Amendment.

The Consolidated Appropriations Act of 2004 (Public Law (Pub. L.) 108-199) was signed into law on January 23, 2004. Section 803 of this law allocates the AI directed pollock fishery to the Aleut Corporation for economic development of Adak, Alaska. The statute permits the Aleut Corporation to authorize one or more agents for activities necessary for conducting the AI directed pollock fishery. Throughout this preamble, the term “Aleut Corporation” will mean the Aleut Corporation or its authorized agent(s) for purposes of describing activities required for managing the AI directed pollock fishery.

Public Law 108-199 requires the Aleut Corporation's selection of participants in the AI directed pollock fishery and limits participation to American Fisheries Act (AFA) (Pub. L. 105-277, Title II of Division C) qualified entities and vessels 60 feet (18.3 m) or less in length overall (LOA) with certain endorsements. Section 803(b) of Pub. L. 108-199 restricts the annual harvest of pollock in the AI directed pollock fishery by vessels 60 feet (18.3 m) LOA or less to less than 25 percent of the annual allocation until 2009, and to less than 50 percent of the annual allocation prior to 2013. These vessels must receive 50 percent of the annual directed pollock fishery allocation starting in 2013 and beyond. A FMP amendment and associated regulatory amendments are needed to implement these and other measures necessary to manage this fishery pursuant to provisions specified in Pub. L. 108-199.

The Council adopted Amendment 82 in June 2004 and clarified a portion of its June action in October 2004. If approved by the Secretary of Commerce, Amendment 82 would revise the FMP to establish the management framework for the AI directed pollock fishery. This proposed rule would implement the following management provisions for the AI directed pollock fishery:

1. Restrictions on the harvest specifications for the AI directed pollock fishery, including: limitations on the size of the annual AI pollock total allowable catch (TAC), limits on the A season harvest of TAC, allocation requirement for vessels 60 feet (18.3 m) LOA or less, and reallocation provisions for unharvested amounts of the AI pollock allocations;

2. Provisions for fishery monitoring, including: the Aleut Corporation's selection and NMFS's approval of vessels and processors participating in the AI directed pollock fishery, restrictions on having pollock from the AI and either the Bering Sea subarea (BS) or the Gulf of Alaska on a vessel at one time, observer and scale requirements, catch monitoring control plans for shoreside and stationary floating processors, and Aleut Corporation's and participants' responsibility for ensuring the harvest does not exceed the AI directed pollock fishery allocation;

3. Reporting requirements; and

4. A new AI Chinook salmon prohibited species catch limit that, when reached, would close the existing Chinook salmon savings areas in the AI.

Prior to Pub. L. 108-199, the AI directed pollock fishery was managed pursuant to the AFA. The AFA allocated the AI directed pollock fishery to specific harvesters and processors named in the AFA and specified in regulations at 50 CFR part 679. Public Law 108-199 supersedes portions of the AFA and allocates all the AI directed pollock fishery to the Aleut Corporation. The implementation of Pub. L. 108-199 requires the amendment of AFA provisions in the FMP and in the regulations at 50 CFR part 679 to provide for the allocation of the AI directed pollock fishery to the Aleut Corporation and for the management of this fishery.

The allocation of pollock to the AFA directed pollock fisheries under section 206(b) of the AFA now only pertains to the BS pollock TAC given that Pub. L. 108-199 fully allocates the AI directed pollock fishery to the Aleut Corporation. Thus, AFA restrictions associated with the directed pollock fishery, including excessive harvesting and processing shares under section 210(e) of the AFA, now apply only to the AFA allocations of BS pollock.

Similarly, AFA groundfish sideboard provisions under section 211 of the AFA would not apply to AFA entities while those entities are participating in the AI directed pollock fishery. Groundfish species taken incidental to the AI directed pollock fishery would be deducted from the relevant TACs, and fisheries for those species would be managed by NMFS accordingly. Pending the nature and scope of incidental catch in the AI directed pollock fishery, the Council could consider separate groundfish sideboard provisions for this fishery in the future.

The following describes the proposed amendments to the regulations, by section, that would be required to implement the management provisions for the AI directed pollock fishery pursuant to Amendment 82 and Pub. L. 108-199.

The BSAI pollock fisheries are managed under the provisions of the AFA. Certain provisions of the AFA applicable to the AI directed pollock fishery are superseded by Pub. L. 108-199. Because the BSAI pollock fisheries include the AI directed pollock fishery, this proposed rule would revise § 679.1(k) to include the AI directed pollock fishery in the paragraph title and to include Pub. L. 108-199 in the list of statutes applicable to the BSAI pollock fisheries.

Several definitions would be revised and four definitions would be added by this proposed rule for the AI directed pollock fishery.

The “Aleut Corporation” is identified in Pub. L. 108-199 as a business incorporated pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq. ). A definition of the Aleut Corporation would be added by this proposed rule to clarify the identity of the corporation that would receive the AI directed pollock fishery allocation.

A definition of the “AI directed pollock fishery” would be added to mean the directed fishery for pollock allocated to the Aleut Corporation. This term does not include directed fishing for pollock under the Western Alaska Community Development Quota (CDQ) Program that may occur in the AI.

A vessel or processor selected by the Aleut Corporation and approved by NMFS to harvest or process pollock in the AI directed pollock fishery during a fishing year (January 1 through December 31) would be defined as an “Aleut Corporation entity.” Section 679.2 would be revised to add a definition for “Aleut Corporation entity” to facilitate its reference in regulations.

The proposed rule would add a definition for a “designated contact for the Aleut Corporation.” This individual would be designated by the Aleut Corporation as the contact person for management of the AI directed pollock fishery, including, but not limited to, reporting of the selection of Aleut Corporation entities set forth in § 679.4(m) of the proposed rule and fulfilling the proposed recordkeeping and reporting requirements for the fishery set forth under § 679.5.

The definitions in § 679.2 that refer to the AFA pollock fishery would be revised to remove references to the AI directed pollock fishery. Public Law 108-199 allocates AI directed pollock fishery to the Aleut Corporation, and no longer to AFA cooperatives.

Under the proposed rule and Pub. L. 108-199, an Aleut Corporation entity must be selected by the Aleut Corporation and subsequently approved by NMFS before it could lawfully participate in the AI directed pollock fishery. Because AFA qualification alone would no longer allow participation in the AI directed pollock fishery, several AFA definitions would be revised by changing the terms “BSAI pollock” to “BS pollock” and “BSAI directed pollock” to “BS directed pollock.” The definitions that would be revised are “AFA catcher/processor,” “AFA catcher vessel,” “AFA crab processing facility,” “AFA entity,” “AFA inshore processor,” “AFA mothership,” “designated primary processor,” “fishery cooperative or cooperatives,” “listed AFA catcher/processor,” and “unlisted AFA catcher/processor.” Removing references to the AI in these AFA definitions would clarify that meeting AFA qualifications does not also qualify a harvester or processor for participating in the AI directed pollock fishery.

The definition for “license limitation groundfish” in § 679.2 would be revised to add an exception for pollock harvested in the AI directed pollock fishery by vessels 60 feet (18.3 m) LOA or less. Public Law 108-199 states that vessels 60 feet (18.3 m) LOA or less that have a valid fishery endorsement may be eligible to participate in the AI directed pollock fishery. The fishery endorsement is issued by the U. S. Coast Guard on the vessel's U.S. Coast Guard documentation for participation in a U. S. fishery. Vessels 60 feet (18.3 m) LOA or less would not need to demonstrate AI pollock harvest history and qualify for a license limitation permit (LLP) pursuant to § 679.4(k). This exception in the license limitation groundfish definition would reduce the licensing burden for participants in the AI directed pollock fishery, would allow vessels 60 feet (18.3 m) LOA or less to enter the fishery without previous pollock fishing history or the necessity for owners to have an LLP that names that vessel, and would encourage economic development of Adak, Alaska, by facilitating the building of a fleet of vessels 60 feet (18.3 m) LOA or less.

Section 679.4 describes the permitting requirements for participation in the groundfish fisheries. Public Law 108-199 requires harvesting and processing participants in the AI directed pollock fishery to be approved by the Aleut Corporation. Public Law 108-199 specifies that vessels eligible to harvest pollock in the AI directed pollock fishery either must be AFA qualified or 60 feet (18.3 m) LOA or less. In June 2004, the Council recommended that all catcher/processors and motherships, regardless of size, also be AFA qualified in order to participate in this fishery. Shoreside and stationary floating processors would not need to be AFA qualified to participate in the AI directed pollock fishery. The proposed rule would establish criteria for the Aleut Corporation's selection and NMFS' approval of participants in this fishery beyond a participant's qualification under the AFA.

This proposed rule would revise § 679.4(l) to clarify that AFA permitting requirements would apply exclusively to the BS pollock fishery, to vessels greater than 60 feet (18.3 m) LOA in the AI directed pollock fishery, and to all catcher/processors and motherships in the AI directed pollock fishery. Paragraphs that reference BSAI pollock harvest history would remain unchanged by this rule because the basis for establishing history for AFA participation was not changed by Pub. L. 108-199.

Revisions would be made to paragraphs (l)(1)(i) for applicability to the BSAI directed pollock fishery, (l)(5)(iii) for the single geographic location requirement for inshore processors, (l)(6)(ii)(B) for the delivery of BSAI pollock to designated cooperative processors, (l)(6)(ii)(C)( 2 ) for cooperative contract information regarding BSAI pollock delivery, and (l)(6)(ii)(D)( 2 ) for landing requirements for pollock harvested in the BSAI directed pollock fishery. The revision to paragraph (l)(6)(ii)(D)( 1 ) for the LLP requirement would remove the reference to the AI cooperative allocation and would make the requirement applicable to vessels greater than 60 feet (18.3 m) LOA harvesting pollock in the AI directed pollock fishery. Vessels 60 feet (18.3 m) LOA or less would not be required to have AFA or LLP permits. Paragraphs (l)(6)(ii)(D)( 2 )( i ) and ( ii ) also would be revised to limit the landing requirements for qualified catcher vessels to pollock taken in the BS only.

Public Law 108-199 does not require vessels 60 feet (18.3 m) LOA or less to comply with other Federal fisheries permitting requirements that may not be easily met and which could restrict the vessels' participation. However, Federal fisheries permits (FFPs) pursuant to § 679.4(b) would be required for all AI directed pollock fishery vessels to ensure Steller sea lion protection measures requiring vessel monitoring systems (§ 679.28) apply to vessels fishing in the AI directed pollock fishery. The FFP requirement applies to catcher vessels, catcher/processors, and motherships. The FFP requirement should not restrict participation in the AI directed pollock fishery considering the minimal requirements for obtaining the permit, and the FFPs are provided free of charge. No regulatory revisions are needed to implement the pollock fishery endorsement and FFP requirements for the AI directed pollock fishery participants.

A new paragraph (m) would be added to § 679.4 to establish the annual process for NMFS' approval of participants in the AI directed pollock fishery. The participants selected by the Aleut Corporation for the AI directed pollock fishery must be approved by NMFS annually under criteria established under Pub. L. 108-199 and in this proposed rule. NMFS' approval must be received by the Aleut Corporation before the participant would be authorized to fish in the AI directed pollock fishery. The proposed rule would require the Aleut Corporation to provide NMFS the identity of selected harvesters and/or processors at least 14 days before the participant is scheduled to begin harvesting or processing pollock in the AI directed pollock fishery. NMFS would review each participant selected by the Aleut Corporation relative to approval criteria established in regulations. Upon approval, NMFS would provide the Aleut Corporation a letter showing NMFS' approval of each participant and the date harvesting or processing by the participants in the AI directed pollock fishery may commence.

The Aleut Corporation would be required to provide a copy of NMFS' approval letter to each participant in the AI directed pollock fishery before harvesting or processing by that participant commences during the fishing year. Vessels participating in the fishery would be required to carry a copy of NMFS' approval letter on the vessel at all times while participating in the fishery. Processors would be required to provide documentation of approval during NMFS inspections. This process would allow for approval of participants before the fishery commences and would assist enforcement personnel to rapidly establish such approval during a boarding or inspection for compliance monitoring or enforcement purposes.

Participants may be added to the approval list at any time during the fishing year upon selection by the Aleut Corporation following the procedure set forth above 14 days before harvesting or processing would commence. Once a participant is approved by NMFS for harvesting or processing pollock taken in the AI directed pollock fishery during the fishing year, the participant would remain approved by NMFS for the duration of the fishing year, as long as the Federal fishing permit and any applicable endorsement remains current. Subsequent disapproval for participation in the AI directed pollock fishery by the Aleut Corporation, for whatever reason, would be managed by the Aleut Corporation through private contractual agreements with the participant.

Paragraph (m) also would include the procedures for appeal of NMFS' disapproval of the Aleut Corporation's selection of a participant for the AI directed pollock fishery. The Regional Administrator would notify the Aleut Corporation and the participant of NMFS' disapproval of the participant. The reason for the disapproval would be provided and the disapproved participant would have 30 days to provide additional evidence. After 30 days, the Regional Administrator would issue an initial administrative determination (IAD) regarding the selection and reasons for the decision. A disapproved participant would be able to appeal the IAD under the appeals procedure at § 679.43 and would be permitted to participate in the AI directed pollock fishery while the IAD is under appeal. This revision would provide due process in the event of a dispute with NMFS' disapproval.

This proposed action would add a new paragraph (q) to the recordkeeping and reporting regulations at § 679.5 to add requirements for the AI directed pollock fishery. The Aleut Corporation would be required to submit a weekly catch report to NMFS for all pollock caught by all vessels fishing on its behalf. The information required would include: the catcher vessel Alaska Department of Fish and Game (ADF&G) identification number; FFP or Federal processor permit number; delivery date; the amount of pollock received in pounds plus the weight of at-sea pollock discards; and the ADF&G fish ticket number. The proposed rule also would require the Aleut Corporation to designate a contact for communications regarding reporting and recordkeeping. The designation of a contact and the information required in the report would ensure timely and complete harvest information from the Aleut Corporation is received to facilitate oversight of the AI directed pollock fishery.

The Council recommended that the Aleut Corporation be required to submit both an annual report and a one-time report about the use of its AI pollock allocation. The annual report would include: (1) information describing the use of the revenues generated from the AI directed pollock fishery by the Aleut Corporation for economic development in Adak, and (2) information about catch similar to that required to be provided by the AFA cooperatives under § 679.61(f). The Council requested that the Aleut Corporation submit a draft of the annual report to the Council by December 1 and a final report by February 1. The Council also requested a one-time report to be provided prior to the June 2006 Council meeting with information on how the revenue from the fishery was spent, harvest success, Chinook salmon bycatch, development of the small vessel fleet, and pollock processing capacity. The Council would consider this information in these reports to determine if the AI directed pollock fishery allocation should be adjusted.

Management of the AI directed pollock fishery would require revisions to logbooks and forms to ensure accurate data collection. The two catcher vessel daily fishing logbooks, two catcher/processor daily cumulative production logbooks (DCPLs), mothership DCPL, and shoreside processor DCPL would be revised by adding “AIP” to the management block of the logbooks to identify the Aleutian Islands directed pollock fishery in the reports. The two weekly production reports (WPRs), two check-in/check out reports, buying station report, and daily production report would be revised by adding “AIP” to the management block of the forms. The software for the shoreside processor electronic logbook report would be revised by adding “AIP” to the management options onscreen.

The prohibitions specific to the AFA in § 679.7(k) would be revised by this proposed rule to apply only to the BS directed pollock fishery. Although many of the prohibitions in this paragraph continue to apply to the AI directed pollock fishery, several no longer apply under Pub. L. 108-199. In paragraphs (k)(3)(i) and (k)(4)(i), inshore processors and catcher vessels are prohibited from processing and harvesting BSAI pollock, respectively, without an AFA permit. Public Law 108-199 and Amendment 82 would allow catcher vessels 60 feet (18.3 m) LOA or less to harvest pollock in the AI directed pollock fishery and would allow shoreside and stationary floating processors without AFA permits to process pollock taken in the AI directed pollock fishery. All catcher/processors, motherships, and catcher vessels larger than 60 feet (18.3 m) LOA must be AFA qualified vessels to participate in the AI directed pollock fishery. Paragraphs (k)(3)(i) and (k)(4)(i) would be revised to exclude AI pollock from the prohibition on harvesting pollock without an AFA permit. These revisions would require each inshore processor and catcher vessel in the BS directed pollock fishery and each catcher vessel greater than 60 feet (18.3 m) LOA in the AI directed pollock fishery to have an AFA permit.

Paragraphs (k)(3)(iii) and (iv) limit the amount of BSAI pollock to be processed by inshore processors and limit the number of geographic locations at which BSAI pollock could be processed in a year. These limitations apply to the AFA pollock fishery, but are not required in the AI directed pollock fishery by either Pub. L. 108-199 or Amendment 82. Consequently, this proposed rule would remove references to the AI pollock fishery from each of these paragraphs.

Paragraphs (k)(5), (k)(6), and (k)(7) prohibit inshore AFA fishery cooperatives from exceeding their annual allocations of BSAI pollock and prohibit AFA-qualified vessels and processors from harvesting or processing an excessive share of BSAI pollock. Because all of the AI directed pollock fishery is allocated to the Aleut Corporation, the prohibitions in these paragraphs are no longer appropriate for the AI directed pollock fishery. This proposed rule would revise these paragraphs to remove references to the AI directed pollock fishery and would ensure that these prohibitions continue to apply only to the AFA fisheries.

New paragraph (l) would add prohibitions specific to the AI directed pollock fishery. Harvesting and processing of pollock taken in the AI directed pollock fishery would be prohibited without selection by the Aleut Corporation and NMFS' approval, as specified under § 679.4(m). NMFS would post a list of NMFS approved participants at www.fakr.noaa.gov that could be reviewed by the participant before harvesting or processing activities. This prohibition would ensure that only harvesters and processors selected by the Aleut Corporation and approved by NMFS could participate in the AI directed pollock fishery.

Paragraph (l) also would prohibit catcher vessels from having onboard at the same time pollock that was harvested from the AI and from either the BS or the GOA. A catcher vessel would be required to offload all pollock that was from the BS or the GOA before fishing in the AI directed pollock fishery and to offload all pollock taken in the AI directed pollock fishery before fishing in the BS or GOA. This prohibition would facilitate enforcement and the accurate accounting of pollock taken in the AI.

Because all catcher/processors and motherships participating in the AI directed pollock fishery would be required to be AFA qualified, catcher/processors and motherships would be prohibited from processing in the AI directed pollock fishery without complying with the AFA catch weighing and observer sampling requirements under paragraphs (k)(2)(iii) and (k)(2)(iv). This revision would ensure the quality of information collected regarding pollock processing.

Paragraph (l) also would prohibit harvesters from delivering pollock harvested in the AI directed pollock fishery to shoreside or stationary floating processors unless the processor has a catch monitoring control plan satisfying the requirements of § 679.28(g) or to a processing vessel that is not AFA qualified and that is not selected by the Aleut Corporation and approved by NMFS for processing pollock harvested in the AI directed pollock fishery.

To manage the harvest of the Aleut Corporation pollock allocation, paragraph (l) would impose prohibitions on the Aleut Corporation and its entities similar to prohibitions for AFA inshore cooperatives. The proposed rule would prohibit harvest in excess of the harvest specifications for the AI directed pollock fishery by participants and by the Aleut Corporation. This would ensure that both the participants and the Aleut Corporation would be responsible to maintain harvest amounts within the AI directed pollock fishery annual, seasonal, and vessel allocations established in the harvest specifications.

Section 679.20(a)(5) establishes the provisions for the pollock harvest specifications in the BS, AI, Bogoslof District, and the GOA. The proposed rule would add a new paragraph (iii) for the provisions for the AI directed pollock fishery and to separate AI pollock from the BS pollock harvest specifications.

In June 2004, the Council recommended a method of funding the annual allocation for the AI directed pollock fishery in consideration of the optimum yield (OY), the CDQ pollock directed fishing allowance pursuant to the AFA and § 679.31(a), and the combined TACs for the BSAI groundfish fisheries. The Council's recommended development of annual recommendations for the Bering Sea (BS) and AI TACs within the 2 million mt OY cap. The Council also recommended that the CDQ directed pollock fishery allowance not be reduced by the establishment of an AI pollock TAC. The proposed FMP text and proposed rule would implement these policy decisions.

Section 206(a) of the AFA requires that “10 percent of the total allowable catch of pollock in the Bering Sea and Aleutian Islands management area be allocated as a directed fishing allowance” to the CDQ program. Public Law 108-199 does not prohibit a CDQ pollock directed fishing allowance in the AI. In October 2004, the Council clarified its intent that the CDQ directed fishing allowance should be deducted from the AI annual pollock TAC to create the initial pollock TAC in the same manner as the Bering Sea pollock allocations. The AI directed pollock fishery for the Aleut Corporation would be allocated from the initial pollock TAC after subtraction of the incidental catch amount. The Council did not recommend a change to the existing regulatory provisions that establish separate CDQ directed fishing allowances in the AI and the Bering Sea subareas. Thus, 10 percent of the TAC specified annually for each subarea would be allocated to the CDQ pollock directed fishing allowance, and the Aleut Corporation and AFA directed pollock fishery allocations would be reduced by corresponding amounts.

This approach maintains Council intent to not reduce the BSAI CDQ directed fishing allowance as a result of the Aleut Corporation allocation. The Aleut Corporation allocation would equal the AI pollock TAC minus the 10 percent CDQ pollock directed fishing allowance and minus the incidental catch allowance (ICA).

In consideration of the harvesting and processing capacity for the AI directed pollock fishery, economic development needs for Adak, Alaska, and impacts on other BSAI groundfish fisheries, the Council recommended limits on the amount of annual harvest in the AI directed pollock fishery. The proposed rule would establish these limits in a new paragraph § 679.20(a)(5)(iii). The annual AI pollock TAC would equal 19,000 mt when the AI pollock ABC is equal to or more than 19,000 mt. When the AI pollock ABC is less than 19,000 mt, the annual AI pollock TAC would be no more than the ABC. The Council determined that the 19,000 mt limit minus the CDQ directed pollock fishing allowance and the ICA would provide an adequate amount of pollock to the Aleut Corporation for economic development while not excessively impacting the other BSAI groundfish fisheries, as combined annual TACs may not exceed the 2 million mt OY cap.

The proposed rule includes a reallocation provision for unharvested AI pollock. The proposed rule would revise § 679.20(a)(5) to authorize the Regional Administrator to determine the amount of the AI directed pollock fishery allocation or CDQ directed fishing allowance that is not likely to be harvested and to reallocate the anticipated unused amounts to the BS directed pollock fishery or the BS CDQ pollock directed fishing allowance, respectively, as soon as practicable. The amount of reallocation would be limited by the BS pollock ABC and must be consistent with determinations resulting from any associated consultations conducted under the Endangered Species Act (ESA). Based on the Council's funding policy, this would ensure that a portion of the BS pollock fishery recommended TAC that was applied to the AI recommended TAC may be returned to the BS pollock fishery if it is not expected to be harvested in the AI.

The Steller sea lion protection measures require harvest of pollock to be within the annual TAC amounts to ensure harvest is appropriate to the amount of available pollock biomass and other considerations. Because of the current condition of the BS pollock stock and the 2 million mt OY maximum in the BSAI, the BS pollock TAC is set well below the BS pollock ABC. The maximum amount of reallocation that could occur from the AI subarea to the BS subarea is no more than 19,000 mt minus the ICA. The 19,000 mt TAC limit is approximately 1.3 percent of the 2005 proposed BS pollock TAC (1,474,450 mt). The proposed acceptable biological catch (ABC) for pollock in the BS subarea is 2,363,000 mt. The 19,000 mt limit is 2 percent of the difference between the BS pollock TAC and ABC. Even with a reallocation of 19,000 mt from the AI subarea, the amount of pollock available for harvest in the BS (1,493,450 mt) would be well below the ABC.

Based on the 19,000 mt annual TAC limit for AI pollock and on the current biomass size of the BS pollock stock, any reallocation of unharvested AI pollock TAC is not likely to result in a harvest in the BS that is excessive in relation to available pollock biomass. As long as the gap between the BS pollock ABC and the BS pollock TAC is wide, the reallocation of unharvested pollock from the AI to the BS is not likely to adversely affect Steller sea lions or their critical habitat. If the biomass of the BS pollock stock declines substantially in the future or if the gap between ABC and TAC is substantially reduced, reallocation of unharvested AI pollock may need to be restricted to protect Steller sea lions and their critical habitat. The condition of the BS stock and the amount of AI pollock reallocation would need to be considered at that time to determine the likely effect on Steller sea lions and their critical habitat. No reallocation would occur if the action was likely to adversely affect Steller sea lions or their critical habitat.

The seasonal apportionment of pollock harvest in the AI directed pollock fishery would be revised by this proposed rule. Pollock is an important prey species for the endangered western distinct population segment of Steller sea lions. The protection measures for Steller sea lions include temporal dispersion of pollock harvest. To temporally disperse harvest of prey species, the Steller sea lion protection measures require apportioning 40 percent of the BSAI pollock TAC to the A season and 60 percent to the B season. The regulations currently state that the seasonal apportionment applies to the BSAI pollock fishery. The proposed seasonal apportionment of AI directed pollock fishery would be established in a different manner than the seasonal apportionment of BS pollock. The proposed rule would remove references to AI pollock seasonal apportionment in §§ 679.20(a)(5)(i)(B) and (a)(5)(ii) and would add a new paragraph (iii) to describe the method of seasonal apportionment for the AI directed pollock fishery.

The Council considered the Steller sea lion protection measures in recommending the seasonal apportionment of the AI directed pollock fishery. The proposed rule would limit the A season apportionment to no more than the lesser of the annual initial TAC plus any CDQ fishery or 40 percent of the annual ABC. The total harvest of pollock in the A season from the directed fishery (AI directed pollock fishery and any CDQ fishery) and ICA would not exceed 40 percent of the ABC. This method of limiting seasonal harvest based on ABC is a departure from the use of TAC for the basis of seasonal apportionments. Because the annual TAC is capped at 19,000 mt when the ABC is greater than 19,000 mt, the Council recommended providing for the annual initial TAC to be taken fully in the A season as long as the annual initial TAC plus any CDQ fishery does not exceed 40 percent of the ABC. This would allow the participants to maximize the revenue potential from the fishery by harvesting the more valuable products which are available early in the year and would keep the A season harvest within the intended 40 percent seasonal limits of the Steller sea lion protection measures.

The B season apportionment to the AI directed pollock fishery would be the remainder of the annual initial TAC minus the A season apportionment, and minus the annual ICA. Unharvested A season pollock initial TAC may be reapportioned by the Regional Administrator to the B season, if it is determined that the B season apportionment and reallocation are likely to be harvested. Otherwise, the Regional Administrator may reallocate unharvested AI pollock initial TAC to the BS pollock fishery as long as the BS pollock ABC is not exceeded, as described above.

The CDQ fishery is not part of the Aleut Corporation's directed pollock fishery in the AI. Any harvest of the CDQ pollock directed fishing allowance in the AI would continue to be conducted with the same seasonal apportionments as currently specified for the AI and BS subareas and CDQ components under § 679.20(a)(5)(i)(B). The proposed rule would reorganize these provisions under § 679.20(a)(5)(i)(B) and continue to apportion 40 percent of the CDQ directed fishing allowance in the AI to the A season and 60 percent to the B season. The CDQ pollock directed fishing allowances specified for the AI and the BS subareas would be determined during the harvest specifications process.

Section 679.20(a)(5)(ii) currently requires that the allocation of pollock in both the AI and the Bogoslof District is to be done in the same manner as the AFA allocations in the BS subarea. Because Pub. L. 108-199 allocated the non-CDQ directed pollock fishery in the AI to the Aleut Corporation, this proposed rule would revise paragraph (a)(5)(ii) to apply to the Bogoslof District only. The establishment of an ICA when the directed pollock fishery in the AI is closed would be addressed in a new paragraph (iii) where harvest specifications and seasonal allocations would be specified.

Paragraph (a)(5)(iii) also would specify the further allocation of the Aleut Corporation's allocation among vessels approved to participate in the AI directed pollock fishery. Public Law 108-199 allows the allocation of a portion of the AI directed pollock fishery to vessels 60 feet (18.3 m) LOA or less in increasing amounts through 2013. In 2004 through 2008, up to 25 percent of the allocation may be provided to vessels 60 feet (18.3 m) LOA or less. In 2009 through 2012, up to 50 percent of the allocation may be provided to vessels 60 feet (18.3 m) LOA or less. For 2013 and beyond, 50 percent of the allocation must be provided to vessels 60 feet (18.3 m) LOA or less. The first two allocation periods would establish a cap on how much of the allocation may go to small vessels. For 2013 and beyond, the amount to go to the small vessels would be 50 percent of the allocation specified during the harvest specifications process.

The Council recommended a separate Chinook salmon prohibited species catch limit in the AI directed pollock fishery. Currently § 679.21(e)(1)(vii) establishes the BSAI Chinook salmon at 29,000 fish. This limit applies to all Chinook salmon taken when directed fishing for pollock, including CDQ pollock fisheries in the BSAI. When this limit is reached in the BSAI pollock trawl fishery, the Chinook salmon savings areas are closed according to a schedule specified in § 679.21(e)(7)(viii). The two Chinook salmon savings areas are shown in Figure 8 to 50 CFR part 679. One of these areas is in the AI (area 1), and the other area is in the BS (area 2). Area 2 is considered an important area for pollock harvest in the BS. The pollock fishery in the BS subarea has had annual incidental catches of Chinook salmon well over 29,000 fish in 2002 and 2003 and likely will exceed the 29,000 limit in 2004, resulting in the closure of areas 1 and 2.

To reduce the potential impact of Chinook salmon bycatch taken in the AI directed pollock fishery on the BS pollock fishery, the Council recommended a separate AI Chinook salmon prohibited species catch (PSC) limit of 700 fish. The AI directed pollock fishery has been closed since 1999, and little recent information exists on Chinook salmon bycatch in the AI pollock trawl fishery. The 700 fish limit is based on the highest rate of Chinook salmon bycatch observed in the AI pollock fishery between 1991 and 1998 and a 19,000 mt AI pollock TAC. If the amount of Chinook salmon bycatch in the AI subarea were to exceed the 700 fish limit, the proposed rule would require the closure of the AI portion of the Chinook salmon savings areas only (area 1 on Figure 8 to 50 CFR part 679). The proposed rule would revise § 679.21(e)(1)(vii) by removing the AI pollock reference for the 29,000 Chinook salmon PSC limit. A new paragraph (e)(1)(ix) would be added to establish the 700 Chinook salmon PSC limit for the AI directed pollock fishery.

Further, the proposed rule revisions to § 679.21(e)(7)(viii) would provide that reaching the BS pollock trawl Chinook salmon PSC limit of 29,000 would close the Chinook salmon savings areas close both in the AI and in the BS. The Chinook salmon savings area in the AI is not expected to be an important location for pollock harvest, so closing this area based on obtaining the BS PSC limit for Chinook salmon would not be an excessive burden to the AI directed pollock fishery and would provide additional protection to Chinook salmon. The incidence of Chinook salmon bycatch would be reviewed during the harvest specifications process to determine if the limit in this proposed rule is appropriate based on recent catch information.

Section 679.23(e)(2) would be revised to include the AI directed pollock fishery in the list of fisheries to which seasonal apportionments apply. The Steller sea lion protection measures require the pollock harvest in the BSAI to be managed in two seasons to ensure temporal dispersion of harvest. This proposed action would establish the A season as 1200 hours, A.l.t., January 20 through 1200 hours, A.l.t., June 10 and the B season as 1200 hours, A.l.t., June 10 through 1200 hours, A.l.t., November 1.

The Council recommended that pollock deliveries to a shoreside or stationary floating processor be prohibited unless the processor has a catch monitoring control plan (CMCP). The CMCP explains how a processor will meet the catch monitoring and control standards detailed in § 679.28(g)(7). This proposed action would revise § 679.28(g)(2) to include the AI directed pollock fishery shoreside processors and stationary floating processors with the processors required to have a CMCP. The CMCP would ensure that pollock processed for the Aleut Corporation would be accurately monitored and reported to ensure effective management of the fishery. This proposed rule also would correct a typographical error in paragraph (g)(3) which references the CMCP standards by revising the reference in the paragraph from (g)(6), which applies to changing a CMCP, to (g)(7) which applies to the standards.

The Council recommended that catcher vessels less than 60 feet (18.3 m) LOA be required to accept a NMFS staff observer if one is designated by NMFS to observe on the vessel. An observer collects fishery information that can be used to manage harvest activities for a fishery. NMFS staff observers would be provided without charge to the vessel owner to collect this information. Current regulations do not require observers on catcher vessels less than 60 feet (18.3 m) LOA in the AI directed pollock fishery. Revised paragraph (e)(1) would require the owner of a vessel less than 60 feet (18.3 m) LOA in the AI directed pollock fishery to accept a NMFS staff observer and to comply with the safety requirements for carrying an observer at § 679.50(g)(1)(ii). Information gathered by the NMFS staff observers may be used in considering future observer requirements for vessels less than 60 feet (18.3 m) LOA in the AI directed pollock fishery.

Catcher vessels 60 feet (18.3 m) to less than 125 feet (38.1 m) LOA in the AI directed pollock fishery are required by § 679.50(c)(1)(v) to have 30 percent observer coverage during a calendar quarter and for at least one complete fishing trip targeting pollock, as defined under paragraph (c)(2)(i). Proposed revisions to paragraph (c)(2)(i) would ensure the AI directed pollock fishery observer coverage is considered separately from BS or GOA pollock fishery observer coverage requirements. Catcher vessels in this size class participating in the AI directed pollock fishery would have at least one of their trips fully observed, ensuring NMFS receives sufficient information for monitoring activities in the AI directed pollock fishery by catcher vessels in this size class.

Revisions to paragraph (c)(5) also would add catcher/processor and mothership observer requirements for the AI directed pollock fishery equivalent to AFA requirements. The Council recommended that all catcher/processors and motherships participating in the AI directed pollock fishery be required to meet the AFA monitoring requirements, including vessels less than 60 ft. (18.3 m) LOA. This requirement would ensure accurate information is available on which to base management decisions for the AI directed pollock fishery. The reference to observer workload restrictions also would be corrected from paragraph (c)(5)(iii) to paragraph (c)(5)(ii).

The title to Subpart F would be revised to read “American Fisheries Act and Aleutian Islands Directed Pollock Fishery Management Measures.” Because a number of AFA provisions also apply to the AI directed pollock fishery, sections of this subpart would be revised to include the management measures for the AI directed pollock fishery.

The authority in the section would be revised to include Pub. L. 108-199 in the list of statutes applicable to the BSAI pollock fisheries.

This section describes the formation and operation of fishery cooperatives for the purposes of the AFA pollock fishery. Proposed revisions to §§ 679.61(b), (d)(3) and (g) would remove references to the AI directed pollock fishery. Public Law 108-199 removes the AI directed pollock fishery from the AFA program. Paragraph (b) now states that fishery cooperatives formed for the purpose of cooperatively managing directed fishing in the BSAI directed pollock fishery must comply with § 679.61. Fishery cooperatives no longer participate in the AI directed pollock fishery. Paragraph (d)(3), now states that inshore cooperatives that are applying for an allocation of BSAI pollock must file their contracts by the December 1 deadline. Inshore cooperatives would no longer be able to apply for an AI pollock allocation pursuant to the proposed rule. Paragraph (g) now prohibits cooperative members from participating in the BSAI directed pollock fishery if any landing taxes for the cooperative are overdue. Because the cooperatives are no longer able to participate in the AI directed pollock fishery without the Aleut Corporation's selection and NMFS' approval, the prohibition on fishing in the AI directed pollock fishery is outside the scope of purpose for the formation of the cooperative and would be inappropriate. The reference to landing taxes in paragraph (g) would be corrected from paragraph (d)(1)(v) to paragraph (e)(1)(v).

Section 679.62 (a) now specifies that inshore cooperatives will receive a portion of the AI directed pollock fishery allocation if the AI is open to directed pollock fishing. Because Pub. L. 108-199 provides for all of the AI directed pollock fishery to be allocated to the Aleut Corporation, this proposed rule would remove the reference to the AI directed pollock fishery allocation to inshore cooperatives in the introductory paragraph to (a) and in paragraphs (a)(2) and (a)(3).

Paragraphs (b)(2) and (b)(3) now refer to the harvest accrual against inshore cooperative quotas and the reporting of inshore cooperative harvest, including the AI directed pollock fishery. Because the AI directed pollock fishery is allocated to the Aleut Corporation, the proposed rule would clarify the description of the inshore cooperative allocation and reporting requirements by removing references to the AI directed pollock fishery. The revision also would remove the additional text “ by a member vessel” in paragraph (b)(2)(i) to provide more concise text for this requirement.

Section 679.63(c) now requires groundfish landed by an AFA catcher vessel in the BSAI pollock fishery at a shoreside processor to be weighed and observed. In June 2004, the Council recommended that the shoreside and stationary floating processors receiving pollock from the AI directed pollock fishery be required to have a CMCP. The AFA weighing and observer requirements for inshore processors were not extended to the AI directed pollock fishery because the CMCP would provide the quality and quantity of information needed. The proposed rule would revise paragraph (c) to remove references to the AI pollock fishery.

The introductory text to paragraphs (a) and (b) would be revised to clarify that the intent of the sideboards is to protect against adverse effects from fishery cooperative in the BS directed pollock fishery. Paragraphs (a)(1)(i) and (b)(3) would be revised to exempt AI pollock from AFA groundfish sideboard provisions. The citation in paragraphs (a)(2)(ii) would be corrected from (a)(1)(ii)(A) to (a)(2)(i). Paragraph (a)(4) would be revised to correct the citation “(a)(1)(i) through (a)(1)(iii)” to “(a)(1)(ii) through (a)(3).” The citation in paragraph (a)(4)(ii) also would be corrected from (a)(1)(iv) to (a)(4)(i).

Because the crab processing sideboard limits are applicable to AFA mothership and inshore processors that receive pollock from the BS directed pollock fishery, paragraphs (a) and (b) would be revised to specify the BS directed pollock fishery.

At this time, NMFS has not determined that the FMP amendment that this rule would implement is consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. NMFS, in making that determination, will take into account the data, views, and comments received during the comment period.

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

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.

Description and estimate of the number of small entities to which the rule applies: Amendment 82 potentially affects the following classes of entities: (1) the Aleut Corporation, (2) fishing operations harvesting pollock in the AI with the permission of the Aleut Corporation, (3) processors processing AI pollock with permission of the Aleut Corporation, (4) AFA pollock vessels that may be affected by the Council's policy on funding the AI allocation or which may be involved in fishing the AI allocation under the terms of the Pub. L. 108-199, and (e) CDQ groups.

Section 803(a) of Pub. L. 108-199 requires that effective January 1, 2004, and thereafter, the directed fishery for pollock in the AI subarea of the BSAI shall be allocated to the Aleut Corporation. Except with the permission of the Aleut Corporation or its authorized agent, the fishing or processing of any part of such allocation shall be prohibited by Section 307 of the Magnuson-Stevens Fishery Conservation and Management Act.

For the purposes of the Regulatory Flexibility Act (RFA), the Aleut Corporation is best characterized as a holding company. A holding company is a company that usually confines its activities to owning stock in and supervising management of other companies. A holding company usually owns a controlling interest in the companies whose stock it holds. The Aleut Corporation carries out most of its significant activities through a variety of other companies whose stock it holds. These include the Aleut Enterprise Corporation, the Adak Reuse Corporation, SMI International Corporation, Tekstar, Inc., Akima Corporation, Aleut Real Estate L..L.C., and the Alaska Trust Company.

As a holding company, the Aleut Corporation is not a small entity under the SBA criteria. Aleut Corporation revenues ranged from about $72 million in 2001 to about $49 million in 2003. SBA small entity criteria at 13 CFR 121.201 provide a small entity threshold for “Offices of Other Holding Companies” of $6 million.

The vessels used to harvest the Aleut Corporation's pollock allocation are expected to “co-op” with the Aleut Corporation because the latter is responsible for dispersing the component shares of the annual AI pollock allocation to individual fishing operations. All those vessels allocated a working share of the Aleut Corporation's directed pollock fishery are “affiliates” of the larger group and are not small entities for RFA purposes. As discussed in Appendix A.2 of the RIR (see ADDRESSES ), small entities affiliated with large entities are considered large entities for the purpose of an SBA analysis. This means that entities which contract with the Aleut Corporation to harvest or process its allocation of AI pollock are large entities within the meaning of the RFA. Thus, the vessels 60 feet (18.3 m) LOA or less, the AFA vessels, and the processors that fish and process this allocation on behalf of the Aleut Corporation must be considered “affiliates,” and are not small entities within the meaning of the RFA.

The decisions related to allocation size, monitoring, harvest limits for vessels less than 60 feet (18.3 m) LOA, recordkeeping and reporting, and Chinook salmon bycatch limits and area closures are only expected to directly regulate entities which would harvest or process the Aleut Corporation allocation of AI pollock. Because, as noted above, these entities are affiliated with the Aleut Corporation, they are all considered large within the meaning of the RFA.

Amendment 82 would establish a policy under which the AI pollock allocation is “funded” in order that it be contained under the 2 million mt total BSAI groundfish OY. This action would not actually reapportion the various pollock allocations to fund AI pollock. It simply would establish the process by which subsequent action in the harvest specifications process would apportion the 2 million ton OY. If the sum of the TACs in the BSAI were less than the 2 million mt OY, the funding of the AI pollock allocation would take place, to the maximum extent possible, from the difference between the sum of the TACs and the OY. In this situation, the funding would not come at the expense of other fleet segments. Alternatively, if the sum of the TACs were equal to the 2 million mt OY, the funding would come from the BSAI pollock TAC. CDQ reserves would be taken from each TAC established from the AI and BS subarea pollock fisheries, and therefore, would not contribute to the funding of the AI pollock TAC. The entire funding would come from a reduced TAC accruing to the AFA pollock fishing fleet in the BS.

The AI pollock proposed action establishes the process which would be followed by the Council and NMFS when setting the species/fishery TACs, at which time all attributable impacts to small entities will be assessed, as required by RFA. The potential direct effects on small entities attributable to funding the AI pollock allocation would be evaluated during the harvest specifications process, an action which always includes an initial regulatory flexibility analysis. This is appropriate because it is not until the annual specifications are proposed that any impacts may actually be identified (i.e., OY allocated to TACs).

To illustrate the point, note that in any year the AI directed pollock fishery allocation may be set at zero, or any number above zero up to the TAC limit proposed under this action. If it is zero, no TAC would be reallocated from other fisheries, and clearly no significant effects on a substantial number of small entities would occur. If the AI directed pollock fishery allocation is very small (i.e., 100 mt), “no significant adverse impacts” would occur. This logic extends continuously until some, as yet undefined, point at which an amount of AI directed allocation is large enough to create a “significant adverse impact” (unless the funding source is BS pollock, wherein no small entities exist). However, it is the specification of all the annual TACs (AI pollock and its funding sources), and not the mechanism for specification, which will result in those impacts, and which may require an analysis which would identify the likely number, distribution, and attributes of the entities impacted.

Moreover, the allocation is funded from either an unallocated portion of the OY or from the allocation by a reduction in the TAC available for harvest by the AFA pollock fleet in the BS. The vessels in the AFA pollock fleet are either affiliated with processors or fishing cooperatives. In all instances, the affiliated entities have gross revenues exceeding the $3.5 million threshold separating small and large entities. Thus, the proposed action would only affect large entities.

Six CDQ groups harvest pollock in the BSAI. CDQ groups represent Western Alaska communities and are given allocations of the annual pollock TAC to use for the purpose of fisheries related economic development to benefit these communities. Under the terms of the AFA, these entities are entitled to 10 percent of the pollock TAC in the BSAI. The CDQ groups are private, non-profit, entities, and are small entities within the meaning of the RFA. In June 2004, the Council explicitly excused the CDQ groups from contributing to the funding of the Aleut Corporation allocation. In October 2004, the Council clarified its intent that the Aleut Corporation, as one of the users of the BSAI pollock, was expected to contribute 10 percent of its AI allocation to the CDQ groups.

Consistent with the Council's intent, the current regulations governing the allocation of pollock to CDQ groups would not be revised under this action. Under current regulations, the CDQ groups receive 10 percent of any TAC specified in the AI and must fish their allocation there unless the Regional Administrator reallocates the unused portion to the BS CDQ pollock directed fishing allowance. The CDQ groups would have been required to fish their AI pollock directed fishing allowance in the AI if the Council had chosen, as it could have, to establish a directed fishery in the AI in 2003 and 2004. This would be the case if Section 803 had not been included in Pub. L. 108-199 and the Council had chosen to create a pollock TAC in the AI in 2005 or in a future year. CDQ groups will receive a part of their CDQ allocation in the AI and their BS CDQ allocation will be reduced by a corresponding amount. The potential advantages and disadvantages of this to the CDQ groups were described in the RIR (Section 7.7) (see ADDRESSES ).

The CDQ groups will not be directly regulated by the Amendment 82 or by the changes in the regulations associated with it. The CDQ groups may be affected by the Council's decisions relating to TACs. These impacts will be described in the IRFA that is prepared each year to accompany the annual harvest specifications.

Because this proposed rule has no significant economic impacts on a substantial number of small entities, an initial regulatory flexibility analysis is not required and none has been prepared.

This proposed rule contains collection-of-information requirements subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). These requirements and estimated reporting burdens have been submitted to OMB for approval: list of participating harvesters and processors in the AI pollock fishery, 16 hours; appeals of NMFS' disapproval as participating harvester or processor, 8 hours, and AI directed pollock fishery catch reporting, 4 hours.

This proposed rule contains collection-of-information requirements subject to the PRA and which has been approved by OMB. Public reporting burden for these requirements are listed by OMB control number.

Federal fisheries permit application, 21 minutes; Federal processor permit application, 21 minutes.

Weekly production reports, 17 minutes; check-in/check-out report, shoreside processor, 8 minutes; check-in/check-out report, mothership or catcher/processor, 7 minutes; daily production report, 11 minutes; buying station report, 23 minutes; catcher vessel trawl gear daily fishing logbook (DFL), 18 minutes; catcher vessel longline or pot gear DFL, 28 minutes; shoreside processor daily cumulative production logbook (DCPL), 31 minutes; mothership DCPL, 31 minutes; catcher/processor longline and pot gear DCPL, 41 minutes; and catcher/processor trawl gear DCPL, 30 minutes.

Inshore processor catch monitoring and control plan, 40 hours.

LLP permit, 1 hour.

AFA inshore processor permit application, 2 hours; AFA catcher vessel permit application, 2 hours; AFA mothership, 2 hours; and AFA catcher/processor permit application, 0 hours.

Catcher vessel cooperative pollock catch report, 5 minutes; shoreside processor electronic logbook report, 35 minutes.

Response times include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection-of-information.

Public comment is sought regarding: whether this proposed collection-of-information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection-of-information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection-of-information to NMFS Alaska Region (see ADDRESSES ), and e-mail to David_Rostker@omb.eop.gov , or fax to 202- 395-7285.

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection-of-information displays a currently valid OMB Control Number.

Informal consultation under the ESA was concluded for Amendment 82 on October 22, 2004. As a result of the informal consultation, the Regional Administrator determined that fishing activities under this rule are not likely to adversely affect endangered or threatened species or their critical habitat. Pollock is an important prey species for the endangered and threatened Steller sea lion populations. The Steller sea lion protection measures evaluated in the 2000 and 2001 Biological Opinions (see ADDRESSES ) were considered in the development of the management provisions of Amendment 82. The protection measures for Steller sea lions include spatial and temporal dispersion of pollock harvest. The pollock fishing closure areas in the AI would remain unchanged under Amendment 82 to ensure spatial dispersion of fishing effort. To temporally disperse harvest of prey species, the Steller sea lion protection measures apportion 40 percent of pollock harvest in the BSAI to the A season and 60 percent to the B season. Amendment 82 would continue to temporally disperse pollock harvest with no more than 40 percent of the ABC permitted to be harvested in the A season. The total harvest of pollock in the Bering Sea subarea, including any reallocation of unharvested AI pollock, also would remain well below the ABC so that overall harvest would be in proportion to biomass and less likely to compete with Steller sea lions for prey. Both of these harvest provisions satisfy the intent of the Steller sea lion protection measures.

For reasons set out in the preamble, 50 CFR part 679 is proposed to be amended as follows:

1. The authority citation for part 679 continues to read as follows:

2. In § 679.1, paragraph (k) is revised to read as follows:

3. In § 679.2, the definitions for “AFA catcher/processor,” “AFA catcher vessel,” “AFA crab processing facility,” “AFA entity,” “AFA inshore processor,” “AFA mothership,” “designated primary processor,” “fishery cooperatives or cooperatives,” “license limitation groundfish,” “listed AFA catcher/processor,” and “unlisted AFA catcher/processor,” are revised, and the definitions for “AI directed pollock fishery,” “Aleut Corporation,” “Aleut Corporation entity,” and “designated contact for the Aleut Corporation” are added in alphabetical order to read as follows:

4. In § 679.4, paragraphs (l)(1)(i), (l)(5)(iii), (l)(6)(ii)(B), (l)(6)(ii)(C)( 2 ), (l)(6)(ii)(D)( 1 )( ii ), (l)(6)(ii)(D)( 2 )( i ) and (l)(6)(ii)(D)( 2 )( ii ) are revised and paragraph (m) is added to read as follows:

5. In § 679.5, paragraphs (a)(7)(xv)(F), (h)(1)(i), (h)(1)(ii)(I), and (q) are added to read as follows:

6. In § 679.7, paragraphs (k)(3)(i), (k)(3)(iii), (k)(3)(iv), (k)(4)(i), (k)(5), (k)(6), and (k)(7) are revised, and paragraph (l) is added to read as follows:

7. In § 679.20, paragraph (a)(5)(iii) is redesignated as paragraph (a)(5)(iv), paragraphs (a)(5)(i)(B)( 1 ), (a)(5)(ii), newly redesignated paragraph (a)(5)(iv)(B) introductory text, and paragraph (a)(6)(i) are revised, and paragraph (a)(5)(iii) is added to read as follows:

8. In § 679.21, paragraphs (e)(1)(vii) and (e)(7)(viii) are revised and paragraph (e)(1)(ix) is added to read as follows:

9. In § 679.23, paragraph (e)(2) is revised to read as follows:

10. In § 679.28, paragraph (g)(2) and the first sentence of paragraph (g)(3) are revised to read as follows:

11. In § 679.50, paragraphs (c)(2)(i), (c)(5) paragraph heading, and (e)(1) are revised and paragraph (c)(5)(i)(C) is added to read as follows:

12. In Subpart F, the subpart heading is revised to read as follows:

13. Section 679.60 is revised to read as follows:

14. In § 679.61, paragraphs (b), (d)(3), and (g) are revised to read as follows:

15. In § 679.62, the introductory text in paragraph (a), and paragraphs (a)(2), (a)(3), (b)(2)(i), (b)(2)(ii), and (b)(3) are revised to read as follows:

16. In § 679.63, paragraph (c) is revised to read as follows:

17. In § 679.64, introductory paragraph of (a), paragraphs (a)(1)(i), (a)(2)(ii), (a)(4), introductory paragraph of (b), and introductory paragraph of (b)(3) are revised to read as follows:

18. In § 679.65, paragraphs (a) and (b) are revised to read as follows:

NMFS manages the groundfish fisheries in the exclusive economic zone off Alaska under the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP). The North Pacific Fishery Management Council (Council) prepared the FMP under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801, et seq. Regulations governing U.S. fisheries and implementing the FMP appear at 50 CFR parts 600 and 679.

Amendments 48/48 to the FMP and to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area were unanimously recommended by the Council in October 2003 and approved by NMFS on October 12, 2004. The final rule implementing Amendments 48/48 was published November 8, 2004, (69 FR 64683). Amendments 48/48 revise the administrative process used to establish annual specifications for the groundfish fisheries of the GOA and the Bering Sea and Aleutian Islands (BSAI). The goals of Amendments 48/48 in revising the specifications process are to (1) manage fisheries based on the best scientific information available, (2) provide for adequate prior public review and comment on Council recommendations, (3) provide for additional opportunity for Secretarial review, (4) minimize unnecessary public confusion and disruption to fisheries, and (5) promote administrative efficiency.

Based on the approval of Amendments 48/48, the Council recommended 2005 and 2006 proposed specifications for GOA groundfish. These proposed specifications are based on the 2003 SAFE report. In November 2004, the 2004 SAFE report will be used to develop the final 2005 and 2006 groundfish acceptable biological catch amounts (ABC). When possible, this proposed rule will identify any proposal that may be anticipated to change in the final specifications. The 2006 specifications will be updated in early 2006 when final specifications for 2006 and new specifications for 2007 are implemented.

In October 2004, the Council also recommended a biennial harvest specifications process for certain long-lived species and for species for which little new management information is available on other than a biennial basis. Based on current survey schedules, the GOA species for which biennial harvest specifications process would be used are deep water flatfish, rex sole, shallow water flatfish, flathead sole, arrowtooth flounder, slope rockfish, northern rockfish, Pacific ocean perch, shortraker/rougheye rockfish, pelagic shelf rockfish, thornyhead rockfish, demersal shelf rockfish, skates, and Atka mackerel. Stock assessment surveys are conducted biennially in the GOA for these species. Because new information is updated every two years and harvest amounts are fairly stable from year to year, the harvest specifications process for these species would be conducted every 2 years. If new management information becomes available for any of those species on a more frequent basis, an annual harvest specifications process could still be used. Amendment 48 to the GOA FMP would allow harvest specifications to be established for up to 2 fishing years, and the administrative process to establish these biennial harvest specifications would be done every other year, concurrent with the annual harvest specifications process used for other species.

Allowing for up to two years of specifications during the specifications process would recognize the time period of projections that must be used for establishing harvest specifications that would allow for rulemaking in the following year and would provide the Council and NMFS the flexibility to conduct either an annual or biennial specifications process in response to potential changes in the frequency of stock assessment surveys or other data or administrative issues. Based on current survey schedules and available information, pollock, trawl sablefish, Pacific cod, and “other species” category fisheries in the GOA will be managed using an annual harvest specification process. However, this process will provide specifications for two years. The second year's specifications will be replaced by the new harvest specifications through rulemaking based on the annual harvest specification process. Any proposed changes from using either an annual process or a biennial process for a particular target species will be analyzed during the harvest specification process.

The Council recommended that specifications for the hook-and-line gear and pot gear sablefish individual fishing quota (IFQ) fisheries be limited to 1 year to ensure that those fisheries are conducted concurrent with the halibut IFQ fishery. Having the sablefish IFQ fisheries concurrent with the halibut IFQ fishery would reduce the potential for discards of halibut and sablefish in these fisheries. The sablefish IFQ fisheries would remain closed at the beginning of each fishing year until the final specifications for the sablefish IFQ fisheries are in effect. The trawl sablefish fishery would be managed using specifications for up to a 2-year period, similar to GOA pollock, Pacific cod and the “other species” category.

The FMP and its implementing regulations require NMFS, after consultation with the Council, to specify the total allowable catch (TAC) for each target species and for the “other species” category, the sum of which must be within the optimum yield (OY) range of 116,000 to 800,000 metric tons (mt). Section 679.20(c)(1) further requires NMFS to publish and solicit public comment on proposed annual TACs, halibut PSC amounts, and seasonal allowances of pollock and inshore/offshore Pacific cod. The proposed specifications set forth in Tables 1 through 13 of this document satisfy these requirements. For 2005, the sum of the proposed TAC amounts is 264,265 mt. For 2006, the sum of the proposed TAC amounts is 253,867 mt. Under § 679.20(c)(3), NMFS will publish the final 2005 and 2006 specifications after (1) considering comments received within the comment period (see DATES ), (2) consulting with the Council at its December 2004 meeting, and (3) considering new information presented in the EA and the final 2004 SAFE report prepared for the 2005 and 2006 fisheries.

Section 679.20(c)(2)(i) provides that one-fourth of each proposed TAC and apportionment (not including the reserves and the first seasonal allowances of pollock and Pacific cod), one-fourth of the proposed halibut PSC amounts, and the proposed first seasonal allowances of pollock and Pacific cod will become effective 0001 hours, Alaska local time (A.l.t.) January 1, 2005, on an interim basis and remain in effect until superseded by the final harvest specifications, which will be published in the Federal Register . Without interim specifications in effect on January 1, the groundfish fisheries would not be able to open on that date. This would result in disruption to the fishing industry. The 2005 interim harvest specifications will be published by NMFS in the Federal Register prior to January 1, 2005.

In June 2004, the Council unanimously recommended revisions to the Steller sea lion protection measures in the GOA to alleviate some of the economic burden on coastal communities while maintaining protection for Steller sea lions and their critical habitat. These revisions would adjust pollock and Pacific cod fishing closures near four Steller sea lion haulouts and would revise seasonal management of pollock harvest. NMFS concluded in an Endangered Species Act, section 7, informal consultation dated August 26, 2004, that fishing under the proposed revisions is not likely to adversely affect Steller sea lions beyond those effects already considered in the 2001 Biological Opinion on the Steller sea lion protection measures and its June 19, 2003 supplement. NMFS published a proposed rule on September 21, 2004 (69 FR 56384) to implement these revisions, inviting comments through October 21, 2004. If adopted, NMFS anticipates that a final rule would be published before the beginning of the 2005 fishing year. The revised pollock harvest management measures would affect the annual specifications by extending the A and C season dates for pollock and provide clarification as to how the Regional Administrator, Alaska Region, NMFS, (Regional Administrator) would rollover unharvested amounts of pollock between seasons.

If adopted, the proposed rule would extend the pollock A season dates from January 20 through February 25 to January 20 through March 10 and extend the pollock C season dates from August 25 through September 15 to August 25 through October 1 in the Western and Central Regulatory Areas of the GOA. The proposed action also would change regulatory provisions for the rollover of a statistical area's unharvested pollock apportionment into the subsequent season. The rollover amount would be limited to 20 percent of the seasonal apportionment for the statistical area. Any unharvested pollock above the 20 percent limit could be further distributed to the other statistical areas, in proportion to the estimated biomass in the subsequent season in those statistical areas.

The proposed ABC and TAC for each species or species group are based on the best available biological and socioeconomic information, including projected biomass trends, information on assumed distribution of stock biomass, and revised methods used to calculate stock biomass. The Council and its Scientific and Statistical Committee (SSC) reviewed current biological and harvest information about the condition of groundfish stocks in the GOA in October 2004. Because of time constraints, the Advisory Panel (AP) did not make any recommendations to the Council regarding the proposed harvest specifications at its October meeting. Most of the information available to the SSC and to the Council was initially compiled by the Council's GOA Plan Team and was presented in the final 2003 SAFE report for the GOA groundfish fisheries, dated November 2003 (see ADDRESSES ). The Plan Team annually produces such a document as the first step in the process of specifying TACs. The SAFE report contains a review of the latest scientific analyses and estimates of each species' biomass and other biological parameters and summaries of the available information on the GOA ecosystem and the economic condition of the groundfish fisheries off Alaska. From these data and analyses, the Plan Team estimates an ABC for each species category. The 2003 SAFE report will be updated to include new information collected during 2004. Revised stock assessments made available by the Plan Team in November 2004 and included in the final 2004 SAFE report, will be available in December 2004. The final harvest specifications may be adjusted from the proposed harvest specifications based on the 2004 SAFE report.

Based on the recommendations from the SSC for overfishing levels (OFLs) and ABCs, the Council recommended the OFLs and ABCs for stocks in tiers 1 through 3, except for pollock, be based on biomass projections as set forth in the 2003 SAFE report and on estimates of groundfish harvests through the 2004 and 2005 fishing years. The Council recommended that OFL and ABC levels for those stocks in tiers 4 through 6, for which projections cannot be made, remain unchanged from 2004 levels for 2005 and 2006.

The SSC adopted the OFL and ABC recommendations from the Plan Team for all groundfish species. In the 2003 SAFE report, the 2005 and 2006 ABC projections are 72,100 mt and 70,642 mt, respectively, for the combined Western, Central, and West Yakutat (W/C/WYK) GOA stock of pollock. The Plan Team did not endorse the ABC projections because the NMFS 2004 winter Shelikof survey estimates indicate that the biomass level is lower than projected and because it represents an increase from the 2004 ABC. The Plan Team recommended that the 2004 ABC of 64,740 mt for the W/C/WYK pollock stock be rolled over in the proposed specifications for 2005 and 2006 given the apparently similar 2003 and 2004 survey results from the NMFS' winter surveys in the GOA. The SSC concurred with the pollock assessment recommendation that OFL and ABC levels be unchanged from 2004 levels until a formal stock assessment can be completed in November 2004.

As in 2004, the SSC and Council recommended that the method of apportioning the sablefish ABC among management areas include commercial fishery and survey data. NMFS stock assessment scientists believe that the use of unbiased commercial fishery data reflecting catch-per-unit effort provides a desirable input for stock distribution assessments. The use of commercial fishery data is evaluated annually to assure that unbiased information is included in stock distribution models. The Council's recommendation for sablefish area apportionments also takes into account the prohibition on the use of trawl gear in the Southeast Outside (SEO) District of the Eastern GOA and makes available 5 percent of the combined Eastern GOA ABCs to trawl gear for use as incidental catch in other directed groundfish fisheries in the West Yakutat District.

The SSC and Council recommended that the ABC for Pacific cod in the GOA be apportioned among regulatory areas based on the three most recent NMFS' summer trawl surveys. As in previous years, the Plan Team, SSC, and Council recommended that total removals of Pacific cod from the GOA not exceed ABC recommendations. Accordingly, the Council recommended that the 2005 and 2006 TACs be adjusted downward from the ABCs by amounts equal to the 2005 guideline harvest levels (GHL) established for Pacific cod by the State of Alaska (State) for the state managed fisheries in the GOA. The effect of the State's GHL on the Pacific cod TAC is discussed in greater detail below. As in 2004, NMFS proposes for 2005 and 2006 to establish an A season directed fishing allowance (DFA) for the Pacific cod fisheries in the GOA based on the management area TACs less the recent average A season incidental catch of Pacific cod in each management area before June 10 (see § 679.20(d)(1)). The DFA and incidental catch before June 10 will be managed such that total harvest in the A season will be no more than 60 percent of the annual TAC. Incidental catch taken after June 10 will continue to be taken from the B season TAC. This action meets the intent of the Steller Sea Lion Protection Measures by achieving temporal dispersion of the Pacific cod removals and by reducing the likelihood of harvest exceeding 60 percent of the annual TAC in the A season (January 1 through June 10).

For 2005 and 2006, the Council recommends and NMFS proposes the ABCs listed in Tables 1 and 2. These amounts reflect harvest amounts that are less than the specified overfishing amounts. The sum of the ABCs for all assessed groundfish is 514,864 mt for 2005 and 515,240 mt for 2006, which is higher than the 2004 ABC of 507,092 mt (69 FR 26320, May 12, 2004).

The Council recommended TACs for 2005 and 2006 that are equal to ABCs for pollock, deep-water flatfish, rex sole, sablefish, Pacific ocean perch, shortraker and rougheye rockfish, northern rockfish, pelagic shelf rockfish, thornyhead rockfish, demersal shelf rockfish, and Atka mackerel. The Council recommended TACs that are less than the ABCs for Pacific cod, flathead sole, shallow-water flatfish, arrowtooth flounder, and other rockfish.

The apportionment of annual pollock TAC among the Western and Central Regulatory Areas of the GOA reflects the seasonal biomass distribution and is discussed in greater detail below. The annual pollock TAC in the Western and Central Regulatory Areas of the GOA is divided into four equal seasonal apportionments. Twenty-five percent of the annual TAC in the Western and Central Regulatory Areas of the GOA is apportioned to the A season (January 20 through February 25), the B season (March 10 through May 31), the C season (August 25 through September 15), and the D season (October 1 through November 1) in Statistical Areas 610, 620, and 630 of the GOA (see § 679.23(d)(2)(i) through (iv) and § 679.20(a)(5)(iii)(B)). As discussed above, revised seasonal dates for the A and C season pollock fisheries would be effective with the implementation of the final rule for revising Steller sea lion protection measures (69 FR 56384, September 21, 2004).

The 2005 and 2006 Pacific cod TACs are affected by the State's developing fishery for Pacific cod in State waters in the Central and Western GOA, as well as in Prince William Sound (PWS). The SSC and Council recommended that the sum of all State and Federal water Pacific cod removals not exceed the ABC. Accordingly, the Council recommended that in 2005 the Pacific cod TAC be reduced from ABC levels to account for State GHLs in each regulatory area of the GOA. Therefore, respective TACs are reduced from ABCs as follows: (1) Eastern GOA, 412 mt; (2) Central GOA, 8,141 mt; and (3) Western GOA, 5,301 mt. For 2006, the Council recommended that the Pacific cod TAC be reduced from ABC levels to account for State GHLs in each regulatory area of the GOA. Therefore, the respective TACs are, therefore, reduced from ABCs as follows: (1) Eastern GOA, 338 mt; (2) Central GOA, 6,683 mt; and (3) Western GOA, 4,352 mt. These amounts reflect the sum of the State's 2005 GHLs in these areas, which are 10 percent, 24.25 percent, and 25 percent of the Eastern, Central, and Western GOA ABCs, respectively.

NMFS also is establishing seasonal apportionments of the annual Pacific cod TAC in the Western and Central Regulatory Areas. Sixty percent of the annual TAC is apportioned to the A season for hook-and-line, pot or jig gear from January 1 through June 10, and for trawl gear from January 20 through June 10. Forty percent of the annual TAC is apportioned to the B season for hook-and-line, pot or jig gear from September 1 through December 31, and for trawl gear from September 1 through November 1 (see §§ 679.23(d)(3) and 679.20(a)(11)). These seasonal apportionments of the annual Pacific cod TAC are discussed in greater detail below.

The FMP specifies that the amount for the “other species” category is calculated as 5 percent of the combined TAC amounts for target species. The 2005 GOA-wide “other species” TAC is 12,584 mt and the 2006 TAC is 12,089 mt, which is 5 percent of the sum of the combined TAC amounts (251,681 mt for 2005 and 241,778 mt for 2006) for the assessed target species. The sum of the TACs for all GOA groundfish is 264,265 mt for 2005 and 253,867 mt for 2006, which is within the OY range specified by the FMP. The sum of the 2005 TACs and the sum of the 2006 TACs are lower than the 2004 TAC sum of 271,776 mt.

NMFS finds that the Council's recommendations for proposed OFL, ABC, and TAC amounts are consistent with the biological condition of groundfish stocks as adjusted for other biological and socioeconomic considerations, including maintaining the total TAC within the required OY range of 116,000 to 800,000 mt. The proposed 2005 and 2006 ABCs, TACs, and OFLs are shown in Tables 1 and 2.

Regulations at § 679.20(b)(2) require 20 percent of each TAC for pollock, Pacific cod, flatfish, and the “other species” category be set aside in reserves for possible apportionment at a later date. In 2004, NMFS reapportioned all of the reserves in the final harvest specifications. For 2005 and 2006, NMFS proposes apportionment of all of the reserve for pollock, Pacific cod, flatfish, and “other species.” Specifications of TAC shown in Tables 1 and 2 reflect apportionment of reserve amounts for these species and species groups.

Under § 679.20(a)(4)(i) and (ii), sablefish TACs for each of the regulatory areas and districts are allocated to hook-and-line and trawl gear. In the Western and Central Regulatory Areas, 80 percent of each TAC is allocated to hook-and-line gear, and 20 percent of each TAC is allocated to trawl gear. In the Eastern Regulatory Area, 95 percent of the TAC is allocated to hook-and-line gear, and 5 percent is allocated to trawl gear. The trawl gear allocation in the Eastern Regulatory Area may only be used to support incidental catch of sablefish in directed fisheries for other target species (see § 679.20(a)(1)). In recognition of the trawl ban in the SEO District of the Eastern Regulatory Area, the Council recommended and NMFS concurs that 5 percent of the combined Eastern GOA sablefish TAC be allocated to trawl gear in the WYK District and the remainder to vessels using hook-and-line gear. In the SEO District, 100 percent of the sablefish TAC is allocated to vessels using hook-and-line gear. The Council recommended that only trawl sablefish TAC be established biennially. This recommendation results in an allocation of 254 mt to trawl gear and 1,782 mt to hook-and-line gear in the WYK District, of 3,053 mt to hook-and-line gear in the SEO District in 2005, and of 236 mt to trawl gear in the WYK District in 2006. Tables 3 and 4 shows the allocations of the proposed 2005 and 2006 sablefish TACs between hook-and-line and trawl gear.

In the GOA, pollock is apportioned by season and area, and is further allocated for processing by inshore and offshore components. Under regulations at § 679.20(a)(5)(iii)(B), the annual pollock TAC specified for the Western and Central Regulatory Areas of the GOA is apportioned into four equal seasonal allowances of 25 percent. As established by § 679.23(d)(2)(i) through (iv), the A, B, C, and D season allowances are available from January 20 through February 25, March 10 through May 31, August 25 through September 15, and October 1 through November 1, respectively. As discussed previously, if the proposed revision of Steller sea lion protection measures (69 FR 56384, September 21, 2004) is approved, the A season dates would be changed to January 20 through March 10 and the C season dates would be changed to August 25 through October 1.

Pollock TACs in the Western and Central Regulatory Areas of the GOA in the A and B seasons are apportioned among statistical areas 610, 620, and 630 in proportion to the distribution of pollock biomass as determined by a composite of NMFS winter surveys and in the C and D seasons in proportion to the distribution of pollock biomass as determined by the four most recent NMFS summer surveys. As in 2004, the Council recommended that during the A season, the winter and summer distribution of pollock be averaged in the Central Regulatory Area to better reflect the distribution of pollock and the performance of the fishery in the area during the A season for the 2005 and 2006 fishing years. Within any fishing year, the underage or overage of a seasonal allowance may be added to or subtracted from subsequent seasonal allowances in a manner to be determined by the Regional Administrator, provided that the sum of the revised seasonal allowances does not exceed 30 percent of the annual TAC apportionment for the Central and Western Regulatory Areas in the GOA (§ 679.20(a)(5)(iii)(B)). For 2005 and 2006, 30 percent of the proposed annual TAC for the Central and Western Regulatory Areas is 19,308 mt. As discussed previously, approval of the proposed revision to Steller sea lion protection measures would alter the way NMFS handles rollovers. The rollover amount would be limited to 20 percent of the seasonal apportionment for the statistical area. Any unharvested pollock above the 20 percent limit could be further distributed to the other statistical areas, in proportion to the estimated biomass in the subsequent season in those statistical areas. Because the harvest of pollock is apportioned among four seasons, the 20 percent seasonal apportionment rollover limit would be equivalent annually to the 30-percent annual rollover limit currently in the regulations. The WYK and SEO District pollock TACs of 1,280 mt and 6,520 mt, respectively, are not allocated seasonally.

Section 679.20(a)(6)(i) requires that 100 percent of the pollock TAC in all regulatory areas and of all seasonal allowances be allocated to vessels catching pollock for processing by the inshore component after subtraction of amounts that are projected by the Regional Administrator to be caught by, or delivered to, the offshore component incidental to directed fishing for other groundfish species. The amount of pollock available for harvest by vessels harvesting pollock for processing by the offshore component is that amount actually taken as incidental catch during directed fishing for groundfish species other than pollock, up to the maximum retainable amounts allowed under § 679.20(e) and (f). At this time, these incidental catch amounts are unknown and will be determined during the fishing year.

The proposed seasonal biomass distribution of pollock in the Western and Central GOA, area apportionments, and seasonal apportionments for the A, B, C, and D seasons are summarized in Table 5.