[Federal Register Volume 71, Number 162 (Tuesday, August 22, 2006)]
[Rules and Regulations]
[Pages 48824-48837]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-7072]



[[Page 48824]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 660

[Docket No. 051014263-6028-03; I.D. 120805A]
RIN 0648-AU00


Fisheries Off West Coast States; Pacific Coast Groundfish 
Fishery; Specifications and Management Measures

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Temporary rule; extension.

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SUMMARY: This action extends a temporary rule, now in effect, that 
establishes the 2006 optimum yield (OY) for darkblotched rockfish 
caught in the U.S. exclusive economic zone (EEZ) off the coasts of 
Washington, Oregon, and California. This action, which is authorized by 
the Pacific Coast Groundfish Fishery Management Plan (FMP) and the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act), is intended to protect darkblotched rockfish, an 
overfished groundfish species.

DATES: The expiration date of the temporary rule (interim darkblotched 
rockfish OY) published on February 17, 2006 (71 FR 8489), effective 
March 1, 2006, through August 27, 2006, is extended through December 
31, 2006.

ADDRESSES: Copies of the Final Environmental Impact Statement for the 
harvest specifications and management measures for the 2005-2006 
groundfish fisheries are available from Donald McIsaac, Executive 
Director, Pacific Fishery Management Council (Council), 7700 NE 
Ambassador Place, Portland, OR 97220, phone: 503-820-2280. Copies of 
the Record of Decision and final regulatory flexibility analysis for 
the 2005-2006 groundfish harvest specifications, and the Small Entity 
Compliance Guide for the 2006 groundfish harvest specifications are 
available from D. Robert Lohn, Administrator, Northwest Region 
(Regional Administrator), NMFS, 7600 Sand Point Way, NE, Seattle, WA 
98115-0070.

FOR FURTHER INFORMATION CONTACT: Jamie Goen (Northwest Region, NMFS), 
phone: 206-526-6140; fax: 206-526-6736; and e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Electronic Access

    This Federal Register document is available on the Government 
Printing Office's website at: www.gpoaccess.gov/fr/index.html.
    Background information and documents are available at the NMFS 
Northwest Region website at: www.nwr.noaa.gov and at the Pacific 
Council's website at: www.pcouncil.org.

Background

    The Pacific Coast Groundfish FMP and its implementing regulations 
at title 50 in the Code of Federal Regulations, part 660, subpart G, 
regulate fishing for over 80 species of groundfish off the coasts of 
Washington, Oregon, and California. Groundfish specifications and 
management measures are developed by the Pacific Council, and are 
implemented by NMFS. The specifications and management measures for 
2005-2006 were codified in the CFR (50 CFR part 660, subpart G). They 
were published in the Federal Register as a proposed rule on September 
21, 2004 (69 FR 56550), and as a final rule on December 23, 2004 (69 FR 
77012). The final rule was subsequently amended on March 18, 2005 (70 
FR 13118); March 30, 2005 (70 FR 16145); April 19, 2005 (70 FR 20304); 
May 3, 2005 (70 FR 22808); May 4, 2005 (70 FR 23040); May 5, 2005 (70 
FR 23804); May 16, 2005 (70 FR 25789); May 19, 2005 (70 FR 28852); July 
5, 2005 (70 FR 38596); August 22, 2005 (70 FR 48897); August 31, 2005 
(70 FR 51682); October 5, 2005 (70 FR 58066); October 20, 2005 (70 FR 
61063); October 24, 2005 (70 FR 61393); November 1, 2005 (70 FR 65861); 
and December 5, 2005 (70 FR 72385). Longer-term changes to the 2006 
specifications and management measures were published in the Federal 
Register as a proposed rule on December 19, 2005 (70 FR 75115) and as a 
final rule on February 17, 2006 (71 FR 8489). The final rule was 
subsequently amended on March 27, 2006 (71 FR 10545), April 11, 2006 
(71 FR 18227), April 26, 2006 (71 FR 24601), May 11, 2006 (71 FR 
27408), May 22, 2006 (71 FR 29257), June 1, 2006 (71 FR 31104), and 
July 3, 2006 (71 FR 37839).
    Acceptable biological catches (ABCs) and OYs are established for 
each year. Management measures are established at the start of the 
biennial period, and are adjusted throughout the biennial management 
period, to keep harvest within the OYs. At the Pacific Council's 
October 31 - November 4, 2005, meeting in San Diego, CA, the Pacific 
Council, in consultation with Pacific Coast Treaty Indian Tribes and 
the States of Washington, Oregon, and California, recommended a 
reduction of the 2006 darkblotched rockfish OY to 200 mt for March 
through December 2006. The management measures for March through 
December 2006 were proposed on December 19, 2005 (70 FR 75115), and 
implemented via the final rule published on February 17, 2006 (71 FR 
8489).
    The 2006 darkblotched rockfish OY of 200 mt is an interim measure 
pursuant to section 305(c) of the Magnuson-Stevens Act, in effect while 
the rebuilding plan (now referred to as Amendment 16-4) is being 
developed and implemented. Under the provisions of section 305(c)(3) of 
the Magnuson-Stevens Act, interim measures shall remain in effect for 
not more than 180 days after the date of publication, and may be 
extended by publication in the Federal Register for an additional 
period of not more than 180 days, provided the public has had an 
opportunity to comment on the interim measures, and the Council is 
actively preparing a plan amendment to address rebuilding on a 
permanent basis. The public has been provided an opportunity to comment 
on the interim measures in the proposed rule (70 FR 75115, December 19, 
2005), and the Council is actively working on an FMP amendment, 
Amendment 16-4, with the 2007-2008 specifications and management 
measures process. The proposed rule for Amendment 16-4 and the 2007-
2008 specifications and management measures is expected to publish in 
September 2006 with a final rule expected to publish in November 2006, 
and become effective January 1, 2007. In addition, the Court's Order in 
Natural Resources Defense Council (NRDC) v. NMFS, 421 F.3d 872 (9\th\ 
Cir. 2005) dated December 8, 2005, requires NMFS to implement a 
darkblotch rockfish quota for the entire 2006 fishing year pursuant to 
section 305(c). Because the Council is continuing work on Amendment 16-
4 and this interim measure expires on August 27, 2006, NMFS is 
extending the darkblotched rockfish OY beyond the first 180-day period.
    During the comment period on the proposed rule to implement changes 
to the 2006 Pacific Coast groundfish fishery specifications and 
management measures (70 FR 75115, December 19, 2005), NMFS received two 
comments on the interim measure for the darkblotched rockfish OY. 
Comment 2 and Comment 6, as published in the ``Comments and Responses'' 
section of the final rule (71 FR 8489, February 17, 2006), show the 
comments received and NMFS response to those comments.

[[Page 48825]]

 These comments and responses are republished below.
    Comment 2: One commenter supports the decrease in the darkblotched 
rockfish OY for 2006 from 294 mt to 200 mt. The commenter notes that 
the latest stock assessment shows that darkblotched rockfish is 
rebuilding more quickly than originally projected and, therefore, the 
OY could be set higher without demonstrably slowing the rebuilding 
progress. However, the commenter supports NMFS effort to rebuild 
quicker than required by law, as was done with lingcod, while 
minimizing impacts on local coastal communities, including fishermen 
and processors.
    Another commenter believes that the rule proposes to set an OY that 
is higher than the lowest level possible and is thereby violating the 
Magnuson-Stevens Act, which requires overfished species to be rebuilt 
as quickly as possible. In the 2005-2006 Pacific Coast Groundfish 
Specifications and Management Measures Environmental Impact Statement 
(hereafter, 2005-2006 Specs EIS), NMFS projected total fishing 
mortality of less than 100 mt for darkblotched rockfish. The commenter 
believes that NMFS failed to consider the lowest possible fishing level 
for darkblotched rockfish because an OY at or below 100 mt was not 
adopted.
    A third commenter suggested that all species should have their 
quotas cut by 50 percent this year and 10 percent each succeeding year.
    Response: As stated in the proposed rule, this action to adjust the 
2006 darkblotched rockfish OY from 294 mt to 200 mt is an interim 
measure to decrease the OY within the current rebuilding plan until a 
revised rebuilding plan is developed. Revising the rebuilding plan 
requires extensive analysis to consider the interaction of the 
rebuilding plans for all overfished species, to determine the needs of 
the fishing communities, and to allow substantial public participation. 
Allowable harvest levels for all overfished groundfish species for 2007 
and beyond will be based on new rebuilding plans intended to meet the 
court's decision in NRDC v. NMFS, 421 F.3d 872 (9\th\ Cir. 2005). The 
Pacific Council intends to review, re-analyze, and revise rebuilding 
plans via Amendment 16-4 to the FMP, which will be developed 
concurrently with the 2007-2008 groundfish harvest specifications and 
management measures. These revised rebuilding plans in Amendment 16-4 
will determine the OYs selected for overfished groundfish species, 
including darkblotched rockfish, in 2007 and beyond.
    At the Pacific Council's October 30 - November 4, 2005, meeting, in 
order to determine if interim action was appropriate, NMFS and the 
Pacific Council analyzed the effects of a range of 2006 darkblotched 
rockfish OYs, from 0-696 mt, on the time to rebuild the darkblotched 
stock. The Pacific Council's Groundfish Management Team estimated: with 
a darkblotched rockfish OY of zero, the stock would be rebuilt by July 
2009; with an OY of 200 mt, the stock would be rebuilt by March 2010; 
and with the previously established OY of 294 mt, the stock would be 
rebuilt by July 2010. Since that meeting, NMFS analyzed the estimated 
gains in rebuilding time that could occur were the 2006 OY set at 100 
mt, and found that a 100 mt OY could result in the stock being rebuilt 
by 3-6 months prior to the March 2010 date associated with a 200 mt OY. 
As discussed below, this small gain in rebuilding time would result in 
large economic losses to the fishing industry and coastal communities. 
Therefore, NMFS concurs with the Pacific Council's recommendation of a 
200 mt OY for darkblotched rockfish in 2006 as an appropriately 
conservative interim OY intended to accommodate some targeting of the 
more healthy groundfish stocks that co-occur with darkblotched 
rockfish.
    Populations of the overfished rockfish species are found along the 
entire length of the U.S. West Coast. Because of their varied 
biological characteristics, overfished rockfish are caught in a broad 
range of fisheries, tribal and non-tribal, commercial and recreational. 
NMFS, its partner state and tribal agencies, and the Pacific Council 
have focused their efforts to protect and rebuild overfished groundfish 
species on minimizing or eliminating directed harvest and minimizing 
incidental catch of overfished stocks. Overfished species are caught in 
all of the groundfish fisheries coastwide not because they are 
targeted, but because they co-occur with the more abundant stocks the 
fisheries do target. For example, yelloweye rockfish is often found at 
similar depths to and caught in common with Pacific halibut, an 
abundant flatfish targeted with hook-and-line gear in the recreational 
and commercial fisheries. Fisheries for target species must then be 
constrained in some way in order to rebuild the non-target overfished 
species, usually with: reductions in allowable landings levels of 
target species, reductions in allowable fishing area so as to minimize 
fishing in areas where overfished species commonly occur, reductions in 
allowable duration of fishing seasons, or alterations in fishing gear 
that either prevent overfished species from being caught by the gear or 
expel overfished species from the gear. All of these tools are used 
either individually or in combination for West Coast fisheries that 
either target groundfish directly, or take groundfish incidentally to 
their non-groundfish fishing operations. Therefore, when NMFS analyzes 
revenues earned or sacrificed in order to rebuild overfished species at 
slower or faster rates, the agency is looking at revenues from the more 
healthy target stocks, not from the overfished species themselves.
    In setting the 2006 darkblotched rockfish OY, NMFS considered both 
the biological constraints of the stock in terms of its ability to 
rebuild by particular dates, and the economic impacts of rebuilding at 
different rates on coastal fishing communities. NMFS particularly 
considered the effect of reducing the 2006 darkblotched rockfish OY to 
100 mt.
    The majority of darkblotched rockfish landed are caught with 
limited entry bottom trawl gear (99.6 percent in 2004), incidentally to 
slope fisheries for groundfish. Because the groundfish fishery has been 
managed under rebuilding measures since 2000, NMFS reviewed the effect 
of a 100-mt darkblotched rockfish OY in 2006 both from the perspective 
of incremental changes to the fishery from current harvests and 
associated revenue, and from the perspective of cumulative changes that 
have been ongoing within the fishery from the past several years. In 
terms of inflation-adjusted dollars, since 2001, real ex-vessel 
revenues from bottom trawl vessels have been less than half of what 
they were in 1996. Many vessels, processors, shore-based 
infrastructure, and support businesses were built to service a fishery 
that generated revenues and landings that are larger than what the 
current fishery generates. This means that current annual revenues are 
less able to support the fixed costs of maintaining the structures 
built to support a more productive industry. Because revenues have 
declined substantially from this period of higher productivity, 
businesses are less able to withstand further declines in revenue. In 
other words, the effect upon fishers, processors, support businesses, 
and communities of reducing ex-vessel revenues is likely to be greater 
when the fishery annually generates $20 million compared to a reduction 
when the fishery annually generates $40 million.
    NMFS analyzed the effects of a 100-mt 2006 darkblotched rockfish OY 
from

[[Page 48826]]

the base of management measures implemented in this rule, assuming 
available darkblotched rockfish incidental catch to be cut to that 100-
mt level. Using ex-vessel prices from 2005, 100 mt of darkblotched 
rockfish translates into roughly $94,000 to $100,000 in ex-vessel 
revenue from landings of darkblotched rockfish itself. However, 
reducing the catch of species that co-occur with darkblotched rockfish 
to stay within a 100 mt OY in 2006 would mean a reduction in ex-vessel 
revenues from co-occurring slope species by several million dollars. 
Ex-vessel revenues should only be viewed as an indicator of economic 
impacts to the vessels, their crew, and owners. Taking into account the 
additional impact to processors, support businesses, and West Coast 
communities means an additional effect that is roughly 20-40 percent 
higher than the ex-vessel revenue impact.
    For example, preliminary catch estimates from 2005 show that 100 mt 
of darkblotched rockfish had been caught incidentally to the slope 
trawl fishery by late August. Had the portion of the fishery that 
catches darkblotched rockfish closed upon attainment of 100 mt of 
darkblotched rockfish, the cost to the bottom trawl fleet would have 
been approximately $3.5 million in foregone ex-vessel revenue, or 
approximately 18 percent of total bottom trawl ex-vessel revenue in the 
area north of 40[deg]10' N. lat. in 2005. In comparison, approximately 
100 mt of darkblotched rockfish had been caught by mid-June in 2004, 
and had the portion of the bottom trawl fishery that catches 
darkblotched rockfish been closed upon attainment of 100 mt of 
darkblotched rockfish, approximately $6.5 million in ex-vessel revenues 
would have been lost, or approximately 38 percent of total bottom trawl 
ex-vessel revenues in the area north of 40[deg]10' N. lat. for that 
year.
    Limited entry bottom trawl regulations implemented in this final 
rule in place for 2006 are designed to distribute catch of target 
species more evenly throughout the year. In 2005, catch was distributed 
more heavily toward the early part of the year. Based on analysis 
applying regulations implemented by this rule to the fishery and 
incidental catch patterns, NMFS expects that the fishery will take 100 
mt of darkblotched rockfish by August 2006. If the slope trawl fishery 
were closed in August 2006, the bottom trawl fleet would lose 25-36 
percent of total bottom trawl ex-vessel revenues from the more abundant 
species that could be taken during the remaining months in the area 
north of 40[deg]10' N. lat. Based on total exvessel revenues in that 
area in the past several years, this is likely to mean a loss of $4.2 
to $6.5 million just in ex-vessel revenues in that area.
    If NMFS were to structure the 2006 season toward both maintaining a 
year round bottom trawl fishery and attaining the highest level of ex-
vessel revenues without exceeding 100 mt of darkblotched rockfish, we 
estimate the cost to the fleet would be a loss of $3.2 to $6.0 million 
in ex-vessel revenues. This somewhat lower loss is in comparison to the 
$4.2 to $6.5 million loss that we expect would occur if the bottom 
trawl fishery were to close on attainment of 100 mt of darkblotched 
rockfish. Achieving a year-round bottom trawl fishery with a 100 mt 
darkblotched OY for 2006 would require inseason changes to regulations 
in May 2006. For purposes of analysis, NMFS assumed that the regulatory 
changes under these conditions would be designed to keep the November-
December deepwater petrale sole fishery, to continue to allow harvest 
of thornyheads in waters deeper than where darkblotched rockfish occur, 
and to allow harvest of sablefish and Dover sole scheduled by 
management measures in this final rule during November-December in 
waters deeper than where darkblotched rockfish occur. These declines in 
landings of the more abundant stocks that co-occur with darkblotched 
rockfish and in associated ex-vessel revenue would most severely affect 
the vessels, processing plants, and ports with reliance upon and 
investment in the trawl slope groundfish fisheries north of 40[deg]10' 
N. lat. NMFS expects that the following ports would be most vulnerable 
to vessel bankruptcy and forfeitures and processing plant closures, if 
the darkblotched OY was set to 100 mt in 2006: Blaine, Bellingham, Neah 
Bay, and Westport, Washington; Astoria, Newport, Coos Bay, and 
Brookings, Oregon; and Eureka, and Crescent City, California. Within 
these ports, the bottom trawl fishery would be most affected. In 2005 
the bottom trawl fishery in these ports generated approximately $18 
million in ex-vessel revenue compared with a combined $32 million for 
bottom and midwater trawl and $46 million for all groundfish in these 
ports.
    As stated above, NMFS and the Pacific Council intend to review and 
revise all of the rebuilding plans in advance of the 2007-2008 fishing 
period. For 2006, NMFS continues to support a darkblotched rockfish OY 
of 200 mt. The difference in rebuilding times between setting an OY for 
2006 at 200 mt versus 100 mt, and maintaining darkblotched mortality at 
the corresponding spawner per recruit harvest rate each year until the 
stock is rebuilt, is less than half a year, while the estimated 
economic impacts from this reduction on the fishing industry and 
coastal communities is on the order of several millions of dollars lost 
each year until the stock is rebuilt. Therefore, NMFS does not support 
reducing the darkblotched OY below 200 mt in 2006.
    NMFS also disagrees with the second commenter's statement that the 
agency is violating the Magnuson-Stevens Act. This interim reduction in 
the OY will prevent potential mortality that could occur if the current 
OY of 294 mt remains in place. This interim measure is consistent with 
section 305(c) of the Magnuson-Stevens Act in establishing interim 
measures until the revised long-term rebuilding plan is developed 
through the Council process and implemented by NMFS. This interim 
measure is not intended to be the long-term rebuilding OY; however, as 
explained above, this OY level provides for continued rebuilding 
through 2006.
    Finally, the third commenter suggested that harvest levels for all 
species be cut by one-half in 2006 and by 10 percent for each 
subsequent year. The darkblotched rockfish OY for 2006 has been cut via 
this action by approximately one-third from the 2006 OY NMFS had 
implemented on January 1, 2005 (69 FR 77012, December 23, 2004). The 
proposed rule for this action did not consider revisions to 2006 
harvest levels for species other than darkblotched rockfish. The 
Pacific Council and its collaborating agencies are developing harvest 
level and management measure recommendations for 2007-2008 via a public 
process during spring 2006. NMFS expects to propose a rule for public 
review and comment on the 2007-2008 harvest specifications and 
management measures and the new rebuilding plans for overfished species 
in early fall 2006.
    Comment 6: NMFS did not consider an adequate range of alternatives 
to the 2006 darkblotched rockfish OY, violating NEPA.
    Response: As stated in the proposed rule for this action (70 FR 
75115, December 19, 2005), NMFS considered a variety of potential 2006 
OYs, ranging from 0-696 mt. In addition, a 200-mt OY for darkblotched 
rockfish is within the range of alternatives analyzed in the 2005-2006 
Specs EIS, the EIS for Amendment 16-2, within the parameters of the 
darkblotched rockfish stock assessment and rebuilding analysis adopted 
by the Council in 2005, and within the parameters of the rebuilding 
plan adopted under Amendment 16-2, which implemented

[[Page 48827]]

rebuilding plans for darkblotched rockfish and other overfished 
species. NMFS took into account the most recent darkblotched rockfish 
stock assessment and rebuilding analysis, the rebuilding plan, and the 
darkblotched OYs analyzed in the 2005-2006 Specs EIS. Therefore, NMFS 
did consider an adequate range of alternatives for darkblotched 
rockfish and did not violate NEPA. To reiterate what NMFS had stated in 
the proposed rule (70 FR 75115, December 19, 2005), the intent of the 
adjusted 2006 darkblotched OY (200 mt) is an interim measure while NMFS 
develops a revised rebuilding plan for darkblotched rockfish. The 
revised rebuilding plan and OYs for 2007-2008, which will be based on a 
new stock assessment for darkblotched rockfish completed in 2005, will 
be analyzed in an EIS being drafted in 2006.

Classification

    The Assistant Administrator for Fisheries, NOAA (AA,) has 
determined that this extension is needed to maintain the lower 
darkblotched rockfish OY of 200 mt for the remainder of 2006, as an 
interim rebuilding measure for darkblotched rockfish, an overfished 
species. The interim 2006 darkblotched rockfish OY is in response to a 
district court order addressing the court of appeals ruling in NRDC v. 
NMFS, 421 F.3d 872 (9\th\ Cir. 2005). NMFS is currently developing a 
revised rebuilding plan for darkblotched rockfish through Amendment 16-
4 and the 2007-2008 groundfish specifications and management measures 
process. The proposed rule for Amendment 16-4 and the 2007-2008 
specifications and management measures is expected to publish in 
September 2006 with a final rule expected to publish in November 2006, 
with an effective date of January 1, 2007. Accordingly, the AA is 
extending the expiration date of this temporary rule through December 
31, 2006, after which the revised darkblotched rockfish rebuilding plan 
and corresponding OY will become effective for 2007 and beyond.
    This action continues interim measures implemented March 1, 2006 
(71 FR 8489, February 17, 2006), for 180 days beyond the current 
expiration date of August 27, 2006, or until December 31, 2006, 
whichever is sooner, because the conditions prompting the initial 
interim measures still remain. The public was provided with the 
opportunity to submit public comment on these measures in the rule 
published on February 17, 2006, and those comments and responses are 
repeated in the preamble to this action. Therefore, the AA finds that 
it would be impracticable and contrary to the public interest to delay 
the extension of these measures by providing additional opportunities 
for public comment, and finds good cause to waive additional public 
comments under 5 U.S.C. 553(b)(B).
    For these same reasons, the AA finds good cause to waive the 30-day 
delayed effectiveness provision of the Administrative Procedures Act 
pursuant to 5 U.S.C. 553 (d)(3).
    In accordance with Executive Order 13175, this temporary rule was 
developed after meaningful consultation and collaboration with the 
tribal representative on the Pacific Council and tribal officials from 
the tribes affected by this action. Under the Magnuson-Stevens Act at 
16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council 
must be a representative of an Indian tribe with federally recognized 
fishing rights from the area of the Council's jurisdiction. The tribal 
representative on the Council made a motion to adopt the management 
measures in this final rule that would affect tribal fishery 
participants, which was passed by the Council.
    This temporary rule has been determined to be not significant for 
purposes of Executive Order 12866.

List of Subjects in 50 CFR Part 660

    Fisheries, Fishing, Indian fisheries.

    Dated: August 16, 2006.
Samuel D. Rauch, III
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, 50 CFR part 660 is amended as 
follows:

PART 660--FISHERIES OFF WEST COAST STATES

0
1. The authority citation for part 660 continues to read as follows:

    Authority: 16 U.S.C. 1801 et seq.

0
2. In part 660, subpart G, Table 2a and Table 2b are revised to read as 
follows:
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[FR Doc. 06-7072 Filed 8-21-06; 8:45 am]
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