issue-1995-12-28•Federal Register final rules — 1995-12-28
Federal Register final rules — 1995-12-28
issue-1995-12-28Federal Register final rules — 1995-12-28Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 95-31412 Assessments
[Federal Register Volume 60, Number 249 (Thursday, December 28, 1995)]
[Rules and Regulations]
[Pages 67054-67055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31412]
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FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 327
Assessments
AGENCY: Federal Deposit Insurance Corporation (FDIC).
ACTION: Final rule; correction.
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SUMMARY: The FDIC published a final rule (60 FR 42680, August 16, 1995)
that established a new assessment rate schedule of 4 to 31 basis points
for institutions whose deposits are subject to assessment by the Bank
Insurance Fund (BIF); widened the assessment rate spread from 8 to 27
points; and established a procedure for adjusting the rate schedule
semiannually as necessary to maintain the designated reserve ratio at
1.25 percent. This document corrects three typographical errors in the
final rule.
[[Page 67055]]
EFFECTIVE DATE: September 15, 1995.
FOR FURTHER INFORMATION CONTACT:
Jenetha M. Hickson, Alternate Liaison Officer, (202) 898-3807.
SUPPLEMENTARY INFORMATION: In preparing the final rule for publication
in the Federal Register, typographical errors were inadvertently made.
Accordingly, the final rule is corrected as follows:
Sec. 327.9 [Corrected]
1. On page 42741, second column, in Sec. 327.9, in the fifth line
of paragraph (b)(3)(i), ``paragraph (c)(2)(i) through (iv)'' is
corrected to read ``paragraph (b)(2)(i) through (iv)''.
2. On page 42741, third column, in Sec. 327.9:
a. In the second line of paragraph (c)(2) introductory text
``Sec. 327.7(a)(3)'' is corrected to read ``Sec. 327.7(a)(2)''; and
b. In the second line of paragraph (c)(3), ``Sec. 327.7(b)(3)'' is
corrected to read ``Sec. 327.7(b)(2)''.
Dated: December 22, 1995.
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Deputy Executive Secretary.
[FR Doc. 95-31412 Filed 12-27-95; 8:45 am]
BILLING CODE 6714-02-M
Complete official Federal Register PDF
FR Doc. 95-31375 Fifth and Eighth District Marine Inspection and Captain of the Port Zone Boundaries
[Federal Register Volume 60, Number 249 (Thursday, December 28, 1995)]
[Rules and Regulations]
[Pages 67060-67062]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31375]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Part 3
[CGD 95-081]
RIN 2115-AF22
Fifth and Eighth District Marine Inspection and Captain of the
Port Zone Boundaries
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
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SUMMARY: The Coast Guard is amending the descriptions of several Marine
Inspection and Captain of the Port zone boundaries in the Fifth Coast
Guard District as a result of the consolidation of the Marine Safety
Office Baltimore and Group Baltimore into a single unit, Activities
Baltimore. The Coast Guard is also revising the descriptions of the
former Marine Inspection and Captain of the Port Zones for Houston, TX
and Galveston, TX to reflect their merger into a single zone. These
changes will clarify Coast Guard geographic area responsibilities both
in the Fifth and in the Eighth Coast Guard Districts. These changes are
administrative and will not impact the type or level of Coast Guard
services performed.
EFFECTIVE DATES: This rule is effective on December 28, 1995.
ADDRESSES: Unless otherwise indicated, documents referred to in this
preamble are available for inspection or copying at the office of the
Executive Secretary, Marine Safety Council (G-LRA/3406), U.S. Coast
Guard Headquarters, 2100 Second Street SW., room 3406, Washington, DC
20593-0001 between 8 a.m. and 3 p.m., Monday through Friday, except
Federal holidays. The telephone number is (202) 267-1477.
FOR FURTHER INFORMATION CONTACT:
Janet Walton, Project Manager, Standards Evaluation and Development
Division (G-MES-2), (202) 267-0257.
SUPPLEMENTARY INFORMATION:
Background and Purpose
Fifth District--Activities Baltimore
During 1995, the Coast Guard reorganized the Marine Safety Office
Baltimore and Group Baltimore units by consolidating them into a single
unit and redefining its geographic area of responsibility. The new
unit, Activities Baltimore, is now the location of the Baltimore Marine
Inspection Office (MI) and Captain of the Port Office (COTP), and its
area of responsibility is now limited to the upper Chesapeake Bay and
its tributaries, all within the State of Maryland. The Philadelphia
Marine Inspection Zone and Captain of the Port Zone were enlarged to
add those portions of the Chesapeake and Delaware Canal, and upper
portions of the Nanticoke River located within the state of Delaware
which formerly were in the Baltimore zone. The Hampton Roads Marine
Inspection Zone and Captain of the Port Zone has been expanded to
include portions of eastern Maryland, northern Virginia and the
Atlantic Ocean which formerly had been part of the Baltimore Marine
Inspection Zone and Captain of the Port Zone. The boundary between the
Baltimore and Hampton Roads MI and COTP zones is now, starting from the
intersection of the Virginia-Maryland-West Virginia boundaries, the
southern bank of the Potomac River as it follows the Virginia-Maryland
and Virginia-District of Columbia boundaries, the Virginia-Maryland
boundary across the Chesapeake Bay and the western portion of Delmarva
Peninsula, and a north-south line along 75 deg.30' W. longitude from
the Virginia-Maryland boundary to the Maryland-Delaware boundary. The
entire Commonwealth of Virginia and the eastern portion of Maryland
along the Atlantic coast are now included within the Hampton Roads
Marine Inspection Zone and COTP Zone.
Eighth District--Houston-Galveston
Previously, the Coast Guard Marine Safety Offices in Houston and
Galveston each exercised MI and COTP authority in their respective
regions. The Coast Guard has consolidated the MI and COTP authority for
both of these regions into one MI and COTP zone, Houston-Galveston.
This merger streamlined the command and control of Marine Safety
activities for the Houston and Galveston areas.
Discussion of Changes
The current descriptions do not reflect the changes in these MI/
COTP zones. This rule will revise these descriptions. The Coast Guard
is proceeding directly to a final rule under section 553(b)(3)(A) of
the Administrative Procedures Act (5 U.S.C. Sec. 551 et seq.) which
excludes rulemakings relating to agency organization, procedure, or
practice from the requirements of public notice and comment. These
changes are administrative and will not impact the type or level of
Coast Guard services performed.
Sec. 3.25-05. This section, describing the Philadelphia Marine
Inspection Zone and Captain of the Port Zone, is revised to add those
portions of the Chesapeake and Delaware Canal, and upper portions of
the Nanticoke River located within the state of Delaware which
previously were in the Baltimore zone. As a result, the entire state of
Delaware will be within the boundaries of the Philadelphia Marine
Inspection and Captain of the Port Zones.
Sec. 3.25-10. This section, describing the Hampton Roads Marine
Inspection Zone and Captain of the Port Zone, is being revised to add
the northern portion of Virginia, the eastern portion of Maryland, and
the portion of the Atlantic Ocean which previously were in the
Baltimore MI and COTP Zones. Instead of the boundary between the
Baltimore and Hampton Roads MI/COTP zones currently described by a line
through northern Virginia and the Virginia-Maryland boundary across the
Chesapeake Bay and the Delamarva Peninsula, the boundary is now,
starting from the intersection of the Virginia-Maryland-West Virginia
boundaries, the southern bank of the Potomac River as it follows the
Virginia-Maryland and Virginia-District of Columbia boundaries, the
Virginia-Maryland boundary across Chesapeake Bay and the western
portion of Delmarva Peninsula, and a north-south line along 75 deg.30'
W. longitude from the Virginia-Maryland boundary to the Maryland-
Delaware boundary, and then along that boundary to the ocean and
further seaward. The entire Commonwealth of Virginia, the eastern
portion of Maryland along the Atlantic coast, and the Atlantic Ocean
adjacent to the Maryland coast to the outermost extent of the EEZ are
now included within the Hampton Roads Marine Inspection Zone and
Captain of the Port Zone. The Hampton Roads zones will border the
Philadelphia Marine Inspection and Captain of the Port Zones from a
point on the Maryland-Delaware boundary (75 deg.30' W. longitude) and
along that boundary to the ocean and further seaward in the same manner
as did the Baltimore MI/COTP zones.
Sec. 3.25-15. This section, describing the Baltimore Marine
Inspection Zone and Captain of the Port Zone, is revised to describe
its new boundaries. The Chesapeake and Delaware Canal, and Nanticoke
River, which were wholly within the Baltimore Marine Inspection and
COTP Zones, are now divided between the Baltimore and Philadelphia
zones at the Maryland-Delaware
[[Page 67061]]
boundary. This section is also being revised so that Baltimore's common
boundary with the Hampton Roads Marine Inspection and COTP Zones
matches that described for section 3.25-10. The result will be that the
Baltimore Marine Inspection Zone and COTP Zone will encompass the whole
of the State of Maryland, including the Potomac River to the Virginia
and District of Columbia boundaries, with the exception of that portion
of Maryland east of 75 deg.30' N. longitude.
Sec. 3.40-25. This section, describing the Houston Marine
Inspection Zone and Captain of the Port Zone, is removed.
Sec. 3.40-28. This section, describing the Houston-Galveston Marine
Inspection Zone and Captain of the Port Zone, is added. The MSO Houston
remains at the same location, is renamed MSO Houston-Galveston, and
assumes MI and COTP authority. MSO Galveston remains at the same
location, becomes Marine Safety Unit (MSU) Galveston, and is a
subordinate office to MSO Houston-Galveston with no independent MI or
COTP authority.
Sec. 3.40-30. This section, describing the Galveston Marine
Inspection Zone and Captain of the Port Zone, is removed.
Regulatory Evaluation
This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order. It
has not been reviewed by the Office of Management and Budget under that
order. It is not significant under the regulatory policies and
procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979). The Coast Guard expects the economic impact of this
rule to be so minimal that a full Regulatory Evaluation under paragraph
10e of the regulatory policies and procedures of DOT is unnecessary. As
this rule involves internal agency practices and procedures, it will
not impose any costs to the public.
Collection of Information
This rule contains no collection of information requirements under
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
The Coast Guard has analyzed this rule under the principles and
criteria contained in Executive Order 12612 and has determined that
this rule does not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Environment
The Coast Guard considered the environmental impact of this rule
and concluded that under paragraph 2.B.2 of Commandant Instruction
M16475.1B, this rule is categorically excluded from further
environmental documentation. This exclusion is in accordance with
paragraphs 2.B.2.e.(34)(a) and (b), concerning regulations that are
editorial or procedural and concerning internal agency functions or
organization. A ``Categorical Exclusion Determination'' is available in
the docket for inspection or copying where indicated under ADDRESSES.
List of Subjects in 33 CFR Part 3
Organization and functions (Government agencies).
For the reasons set out in the preamble, the Coast Guard amends 33
CFR part 3 as follows:
PART 3--COAST GUARD AREAS, DISTRICTS, MARINE INSPECTION ZONES, AND
CAPTAIN OF THE PORT ZONES
1. The authority citation for part 3 continues to read as follows:
Authority: 14 U.S.C. 633; 49 CFR 1.45, 1.46.
2. In Sec. 3.25-05, paragraph (b) is revised to read as follows:
Sec. 3.25-05 Philadelphia Marine Inspection Zone and Captain of the
Port Zone.
* * * * *
(b) The boundary of the Philadelphia Marine Inspection Zone and
Captain of the Port Zone starts at the New Jersey coast at 39 deg.57'
N. latitude, thence proceeds westward to 39 deg.57' N. latitude,
74 deg.27' W. longitude; thence north-north-westerly to the
intersection of the New York-New Jersey-Pennsylvania boundaries at
Tristate; thence north following the course of and including the waters
of the Delaware River until it meets the New York boundary; thence west
along the New York-Pennsylvania boundary to 78 deg.55' W. longitude;
thence south to 41 deg.00' N. latitude; thence west to 79 deg.00' W.
longitude; thence south to the Pennsylvania-Maryland boundary; thence
east to the intersection of the Maryland-Delaware boundary; thence
south and east along the Maryland-Delaware boundary to the sea,
including Fenwick Island Light. The offshore boundary starts at Fenwick
Island Light and proceeds east along 38 deg.28' N. latitude, to
71 deg.00' W. longitude; thence northwesterly along a line bearing
122 deg.T from the New Jersey coast at 39 deg.57' N. latitude.
3. In Sec. 3.25-10, paragraph (b) is revised to read as follows:
Sec. 3.25-10 Hampton Roads Marine Inspection Zone and Captain of the
Port Zone.
* * * * *
(b) The boundary of the Hampton Roads Marine Inspection Zone and
Captain of the Port Zone starts at the intersection of the Maryland-
Delaware boundary and the coast and proceeds along the Maryland-
Delaware boundary to a point 75 deg.30' W. longitude; thence southerly
to a point 75 deg.30' W. longitude on the Maryland-Virginia boundary;
thence westerly along the Maryland-Virginia boundary as it proceeds
across the Delmarva Peninsula, Pocomoke River, Tangier and Pocomoke
Sounds, and Chesapeake Bay; thence northwesterly along the Maryland-
Virginia boundary and the District of Columbia-Virginia boundary as
those boundaries are formed along the southern bank of the Potomac
River to the intersection of the Virginia-Maryland-West Virginia
boundaries; thence southerly along the Virginia-West Virginia boundary
and the Virginia-Kentucky boundary to the Tennessee boundary; thence
eastward along the Virginia-Tennessee boundary to the Virginia-North
Carolina boundary; thence eastward along the Virginia-North Carolina
boundary to Kerr (Buggs Island) Lake; thence along the shore of Kerr
Lake in North Carolina back to the Virginia-North Carolina boundary;
thence eastward along the Virginia-North Carolina boundary to the west
bank of the Chowan River; thence southerly along the west bank of the
Chowan River to a point 36 deg.00' N. latitude, 76 deg.41' W.
longitude; thence generally southerly and easterly along the western
boundaries of Washington, and Hyde Counties to a point 35 deg.37' N.
latitude, 76 deg.32' W. longitude; thence easterly to a point
35 deg.37' N. latitude, 76 deg.00.5' W. longitude; thence generally
southwesterly to a point 35 deg.01.5' N. latitude, 76 deg.20' W.
longitude; thence easterly to the sea at 34 deg.59.8' N. latitude,
76 deg.07.8' W. longitude. The offshore boundary starts at the
intersection of the Maryland-Delaware boundary and the coast and
proceeds east to a point 38 deg.28' N. latitude, 71 deg.00' W.
longitude; thence southeasterly on a line bearing 122 deg.T to the
outermost extent of the EEZ; thence southerly along the outermost
extent of the EEZ to 34 deg.59.8' N. latitude; and thence westerly
along 34 deg.59.8' N. latitude to the coast at 76 deg.07.8' W.
longitude.
4. In Sec. 3.25-15, paragraph (b) is revised to read as follows:
Sec. 3.25-15 Baltimore Marine Inspection Zone and Captain of the Port
Zone
* * * * *
[[Page 67062]]
(b) The boundary of the Baltimore Marine Inspection Zone and
Captain of the Port Zone starts at a point of 75 deg.30' W. longitude
on the Delaware-Maryland boundary and proceeds along the Delaware-
Maryland boundary west and north to the Pennsylvania boundary; thence
west along the Pennsylvania-Maryland boundary to the West Virginia
boundary; thence southerly and easterly along the Maryland-West
Virginia boundary to the Virginia boundary; thence southeasterly along
the Maryland-Virginia boundary and the District of Columbia-Virginia
boundary as those boundaries are formed along the southern bank of the
Potomac River; thence easterly along the Maryland-Virginia boundary as
it proceeds across the Chesapeake Bay, Tangier and Pocomoke Sounds,
Pocomoke River, and Delmarva Peninsula to a point 75 deg.30' W.
longitude on the Maryland-Virginia boundary; thence northerly to a
point 75 deg.30' W. longitude on the Delaware-Maryland boundary.
Sec. 3.40-25 [Removed]
5. Section 3.40-25 is removed.
6. Section 3.40-28 is added to read as follows:
Sec. 3.40-28 Houston-Galveston Marine Inspection Zone and Captain of
the Port Zone
(a) The Houston-Galveston Marine Inspection Office and the Captain
of the Port Office are located in Houston, Texas. The Galveston Marine
Safety Unit is a subordinate unit of the Marine Safety Office and is
located in Galveston, Texas.
(b) The boundary of the Houston-Galveston Marine Inspection Zone
and Captain of the Port Zone starts at the intersection of the sea and
94 deg.23' W. longitude; thence proceeds north along 94 deg.23' W.
longitude to 30 deg.00' N. latitude; thence west along 30 deg.00' N.
latitude to the east bank of the Trinity River; thence northerly along
the east bank of the Trinity River; thence northwesterly along the
eastern shore of Lake Livingston; thence northwesterly along the east
bank of the Trinity River to the southern boundary of Dallas County,
Texas; thence westerly along the southern boundary of Dallas County,
Texas to 97 deg.00' W. longitude; thence north along 97 deg.00' W.
longitude to the Texas-Oklahoma boundary; thence northwesterly along
the Texas-Oklahoma boundary; thence north along the New Mexico-Oklahoma
boundary; thence west along the New Mexico-Colorado boundary; thence
south along the New Mexico-Arizona boundary; thence easterly along the
southern boundary of New Mexico to the southeast corner of New Mexico
at 32 deg.00' N. latitude; thence southeasterly to 29 deg.18' N.
latitude, 96 deg.07' W. longitude on the east bank of the Colorado
River; thence southerly along the east bank of the Colorado River to
the sea; thence along a line bearing 140 deg.T to the outermost extent
of the EEZ; thence easterly along the outermost extent of the EEZ to
93 deg.25' W. longitude; thence north to 27 deg.49' N. latitude,
93 deg.25' W. longitude; thence northwesterly to 29 deg.30' N.
latitude, 93 deg.48' W. longitude; thence westward following a line
10.3 nautical miles from the coast to 29 deg.24' N. latitude,
94 deg.20' W. longitude; thence northwesterly to the coast at
94 deg.23' W. longitude.
Sec. 3.40-30 [Removed]
7. Section 3.40-30 is removed.
Dated: December 19, 1995.
J.C. Card,
Rear Admiral, U.S. Coast Guard, Chief, Office of Marine Safety,
Security and Environmental Protection.
[FR Doc. 95-31375 Filed 12-27-95; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 95-31370 Programs for Chemical Drug and Alcohol Testing of Commercial Vessel Personnel; Delay of Implementation Dates
[Federal Register Volume 60, Number 249 (Thursday, December 28, 1995)]
[Rules and Regulations]
[Pages 67062-67063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31370]
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DEPARTMENT OF TRANSPORTATION
46 CFR Part 16
[CGD 95-090]
RIN 2115-AF25
Programs for Chemical Drug and Alcohol Testing of Commercial
Vessel Personnel; Delay of Implementation Dates
AGENCY: Coast Guard, DOT.
ACTION: Final rule.
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SUMMARY: The Coast Guard is delaying the effective date of regulations
governing drug testing, insofar as those regulations would require
testing of persons onboard U.S. vessels in waters that are subject to
the jurisdiction of a foreign government. Under this final rule, the
Coast Guard continues to delay the effective date for foreign
implementation until January 2, 1997, to allow completion of a
permanent change to the regulations affecting foreign implementation of
its drug testing rules.
EFFECTIVE DATE: December 28, 1995.
ADDRESSES: Unless otherwise indicated, documents referred to in this
preamble are available for inspection or copying at the office of the
Executive Secretary, Marine Safety Council (G-LRA/3406), U.S. Coast
Guard Headquarters, 2100 Second Street SW., room 3406, Washington, DC
20593-0001 between 8 a.m. and 3 p.m., Monday through Friday, except
Federal holidays. The telephone number is (202) 267-1477.
FOR FURTHER INFORMATION CONTACT: Lieutenant Jerry Hilton, Project
Manager, Marine Investigation Division (G-MAO-1), Office of Marine
Safety, Security and Environmental Protection, (202) 267-0686.
SUPPLEMENTARY INFORMATION:
Drafting Information
The principal persons involved in drafting this document are
Lieutenant Jerry Hilton, Project Manager, Office of Marine Safety,
Security and Environmental protection, and Christena Green, Project
Counsel, Office of Chief Counsel.
Background and Purpose
On November 21, 1988, the Coast Guard, along with other agencies of
the Department of Transportation (DOT), adopted regulations requiring
pre-employment, post-accident, reasonable cause, and random drug
testing. Those individuals required under Federal law or regulation to
have periodic medical examinations were also required to undergo a drug
test at the same time. The drug testing required by the rule applies to
some persons located outside of the United States. However, the rules
provided that they would not apply outside the United States in any
situation in which application of the rules violated foreign local laws
or policies.
At the same time, the Coast Guard stated that the DOT and other
elements of the government would enter into discussions with foreign
governments to attempt to resolve any conflict between our rules and
foreign government laws or policies. The Coast Guard stated that if, as
a result of those discussions, it was found that amendments to the rule
were necessary, timely amendments would be issued. An amendment was
issued on December 21, 1989, and published on December 27, 1989 (54 FR
53286). Under that amendment, drug testing for persons onboard U.S.
vessels in waters subject to the jurisdiction of a foreign government
was scheduled to begin by January 2, 1992. A final Rule was published
on April 24, 1991, delaying the implementation date to January 2, 1993
(56 FR 18982); a Final Rule was published on July 14, 1992, delaying
the implementation date to January 2, 1995 (57 FR 31274); and another
Final Rule was published on December 20, 1994, delaying the
implementation date to January 2, 1996 (59 FR 6500).
During the past few years, discussions with other countries have
been held, and the difficulty of achieving effective bilateral
agreements has become clear. Although the Coast Guard could allow its
regulations to take effect in foreign
[[Page 67063]]
waters, the Coast Guard continues to recognize that: (1) It would be
difficult for U.S. carriers to effectively implement the regulations
without cooperation from foreign governments; (2) in response, foreign
governments could impose restrictions on U.S. operations; and, perhaps
most importantly, (3) there are distinct advantages to be gained in
aligning foreign measures and U.S. measures, especially as they relate
to international transportation operations.
For these reasons, the Coast Guard has proposed not to require
testing under part 16 in waters subject to the jurisdiction of a
foreign government [CGD95-011; 60 FR 43426; August 21, 1995]. The
comment period on that NPRM ended October 20, 1995.
In order to allow time to further consider these issues and to
formulate a final decision, the Coast Guard has again determined that
additional time is necessary. Another delay of approximately one year
should provide sufficient time to complete the rulemaking on foreign
applicability. Accordingly, the Coast Guard has determined to postpone
again the date by which testing programs would commence for persons
onboard U.S. vessels in waters that are subject to the jurisdiction of
a foreign government.
This final rule delays the applicability of the regulations where
they may conflict with foreign law or policy. This rule imposes no
additional burdens on the regulated industry. Without this delay in the
implementation date, persons onboard U.S. vessels in waters that are
subject to the jurisdiction of a foreign government would become
subject to the requirements of part 16 on January 2, 1996. Delaying the
implementation date ensures that the applicability of part 16 will
continue unchanged. Accordingly, the Coast Guard finds that good cause
exists under 5 U.S.C. 553(b) to publish this rule without notice and
comment and to make this rule effective less than 30 days after
publication in the Federal Register.
Regulatory Evaluation
This final rule is not a significant regulatory action under
section 3(f) of Executive Order 12866 and does not require an
assessment of potential costs and benefits under section 6(a)(3) of
that order. It has not been reviewed by the Office of Management and
Budget under that order. It is not significant under the regulatory
policies and procedures of the Department of Transportation (DOT) (44
CFR 11034; February 26, 1979). The economic impact of these changes is
so minimal that further evaluation is not necessary. This final rule
modifies the effective date for compliance with Coast Guard regulations
governing drug testing, insofar as those regulations would require
testing of persons onboard U.S. vessels that are subject to the
jurisdiction of a foreign government. It does not change the basic
regulatory structure of that rule.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this proposal will have a significant
economic impact on a substantial number of small entities. ``Small
entities'' include independently owned and operated small businesses
that are not dominant in their field and that otherwise qualify as
``small business concerns'' under section 3 of the Small Business Act
(15 U.S.C. 632). This rule does not require a general notice of
proposed rulemaking and, therefore, is exempt from the regulatory
flexibility requirements. Although exempt, the Coast Guard has reviewed
this rule for potential impact on small entities.
The amendment in this final rule only extends a compliance data,
and imposes no costs on affected entities. Therefore, the Coast Guard
certifies under 5 U.S.C. 605(b) that this final rule will not have a
significant economic impact on a substantial number of small entities.
Collection of Information
This rule contains no collection of information requirements under
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
The Coast Guard has analyzed this rule in accordance with the
principles and criteria contained in Executive Order 12612 and has
determined that it does not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment. The authority to
require programs for chemical drug and alcohol testing of commercial
vessel personnel has been committed to the Coast Guard by Federal
statutes. This final rule does, therefore, preempt State and local
regulations regarding drug testing programs requiring the testing of
persons onboard U.S. vessels in waters that are subject to the
jurisdiction of a foreign government.
Environment
The Coast Guard has considered the environmental impact of this
final rule, and has concluded that, under section 2.B.2.e(34)(c) of
Commandant Instruction M16475.1B, it is categorically excluded from
further environmental documentation. This final rule merely extends an
implementation date and clearly has no environmental impact.
List of Subjects in 46 CFR Part 16
Drug testing, Marine safety, Reporting and recordkeeping
requirements, Safety, Transportation.
For the reasons set forth in the preamble, the Coast Guard amends
46 CFR part 16 as follows:
PART 16--CHEMICAL TESTING
1. The authority citation for part 16 continues to read as follows:
Authority: 46 U.S.C. 2103, 3306, 7101, 7301 and 7701; 49 CFR
1.46.
2. In Sec. 16.207, paragraph (b) is revised to read as follows:
Sec. 16.207 Conflict with foreign laws.
* * * * *
(b) This part is not effective until January 2, 1997, with respect
to any person onboard U.S. vessels in waters that are subject to the
jurisdiction of a foreign government. On or before December 1, 1996,
the Commandant shall issue any necessary amendment resolving the
applicability of this part to such person on and after January 2, 1997.
Dated: December 20, 1995.
J.C. Card,
Rear Admiral, U.S. Coast Guard, Chief, Office of Marine Safety,
Security and Environmental Protection.
[FR Doc. 95-31370 Filed 12-27-95; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 95-31362 International Operations of United States Banking Organizations
[Federal Register Volume 60, Number 249 (Thursday, December 28, 1995)]
[Rules and Regulations]
[Pages 67050-67054]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31362]
=======================================================================
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FEDERAL RESERVE SYSTEM
12 CFR Part 211
[Regulation K; Docket No. R-0896]
International Operations of United States Banking Organizations
AGENCY: Board of Governors of the Federal Reserve System.
ACTION: Final rule.
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SUMMARY: This final rule amends Subpart A of Regulation K
(International Operations of U.S. Banking Organizations) to provide
expanded general consent authority for investments in foreign companies
by
[[Page 67051]]
U.S. banking organizations that are strongly capitalized and well
managed. This expanded authority is designed to permit U.S. banking
organizations meeting these requirements to make larger investments
without the need for prior approval or review. Certain investments or
activities, however, are not eligible for the expanded authority. The
final rule requires an investor making use of the expanded authority to
provide the Board with certain information after an investment has been
made. In addition, for those investments requiring prior notice to the
Board, the rule would streamline the processing of such notices.
EFFECTIVE DATE: December 21, 1995.
FOR FURTHER INFORMATION CONTACT: Kathleen M. O'Day, Associate General
Counsel (202/452-3786), Sandra L. Richardson, Managing Senior Counsel
(202/452-6406), Jonathan D. Stoloff, Senior Attorney (202/452-3269), or
Andres L. Navarrete, Attorney (202/452-2300), Legal Division; William
A. Ryback, Associate Director (202/452-2722), Michael G. Martinson,
Assistant Director (202/452-2798), or Betsy Cross, Manager (202/452-
2574), Division of Banking Supervision and Regulation, Board of
Governors of the Federal Reserve System. For the users of
Telecommunication Device for the Deaf (TDD) only, please contact
Dorothea Thompson (202/452-3544), Board of Governors of the Federal
Reserve System, 20th and C Streets, N.W., Washington, D.C. 20551.
SUPPLEMENTARY INFORMATION: Subpart A of the Board's Regulation K sets
out the rules governing the foreign activities of U.S. banking
organizations, including procedures for making investments in foreign
banking and non-banking organizations. Under section 211.5(c), all such
investments, whether made directly or indirectly, are required to be
made in accordance with the general consent, prior notice, or specific
consent procedures contained in that paragraph. 12 CFR 211.5(c). No
prior notice or application is required for any investment that falls
within the general consent authority. Such authority at present is
limited to investments where the total amount invested in any one
organization, in one transaction or a series of transactions, does not
exceed the lesser of $25 million or 5 percent of the investor's Tier 1
capital where the investor is a member bank, bank holding company, or
Edge corporation engaged in banking.1
\1\ In the case of an Edge corporation not engaged in banking,
the relevant general consent limit is the lesser of $25 million or
25 percent of its Tier 1 capital.
---------------------------------------------------------------------------
On September 25, 1995, the Board requested public comment on a
proposed rule that would expand the general consent authority for
strongly capitalized and well-managed banking organizations. 60 FR
49350. The expanded general consent authority (expanded authority) was
intended to reduce the burden associated with obtaining approval for
such investments for U.S. banking organizations meeting these
requirements. The comment period ended on October 30, 1995. The Board
received nine public comments on the proposal. Comments were submitted
by six banking organizations and three trade associations. The Board
has considered the comments and, as a result of its further review, has
made several changes to address these comments in the final rule.
The final rule removes the current $25 million cap on general
consent investments, which is currently the binding constraint on such
investment in almost all cases, and instead ties the expanded general
consent limits to the capital of the investor. An aggregate limit on
investments made in any 12-month period under the expanded authority is
established. The final rule also specifies the nature of investments
eligible for the expanded authority, as well as the types of activities
that may be conducted by the organization in which the investment is to
be made. Comments received regarding each of these areas are discussed
below.
Investor Eligibility for Expanded General Consent
The final rule limits the expanded general consent authority to
those investors that are strongly capitalized and well managed. The
expanded authority is available for investments by member banks, bank
holding companies, Edge corporations that are not engaged in banking,
and agreement corporations. The expanded authority is available only
where the investor, its parent member bank, if any, and the bank
holding company are strongly capitalized and well managed, as those
terms are defined by the Board. Strongly capitalized, in relation to
member banks, is defined with reference to the definition of ``well
capitalized'' set out in the prompt corrective action standards, which
requires, at a minimum, a 6 percent tier 1 and 10 percent total risk-
based capital ratio and a leverage ratio of 5 percent.2 12 CFR
208.33(b)(1). Edge or agreement corporations and bank holding companies
are required to have a total risk-based capital ratio of 10 percent or
more in order to be considered strongly capitalized for purposes of the
expanded authority.
\2\ The member bank also may not be subject to any written
agreement, order, capital directive, or prompt corrective action
directive issued by the Board to meet and maintain a specific
capital level for any capital measure. 12 CFR 208.33(b)(1).
---------------------------------------------------------------------------
One commenter asked for clarification with respect to the
applicability of the capital tests, maintaining that the capital
requirement should apply only to the investor and entities that control
the investor. Section 211.5(c)(2)(i)(F) of the proposed rule indicates
that this is in fact the requirement.
Another commenter pointed out that risk-based capital ratios have
not been applicable previously to Edge corporations not engaged in
banking. The Board notes this comment but considers that calculating
such a ratio would not impose an undue burden on those investors
seeking to utilize the expanded authority.
The definition of well managed included in the proposed rule
provided that, in order to be considered well managed, the Edge or
agreement corporation, its parent member bank, if any, and the bank
holding company must each have received a composite rating of at least
1 or 2, with no component below 3, at its most recent examination or
review. Comments submitted advocated relying solely upon the composite
rating for purposes of the ``well managed'' definition. The final rule
incorporates this change. However, an additional element also has been
incorporated in the definition to clarify that any investor that is
under a formal supervisory action would be ineligible to take advantage
of the expanded authority. The Board believes the existence of any such
supervisory action would be indicative of managerial deficiencies such
that the expanded authority should not be available.
Individual Investment Limit
Limits were proposed on the expanded authority that were tied to
the level of capital of the investor. For Edge or agreement
corporations, the relevant limits were proposed to be no more than the
lesser of 20 percent of the Edge or agreement corporation's tier 1
capital or 2 percent of the tier 1 capital of its parent member bank.
For member banks and bank holding companies, the proposed limit was no
more than 2 percent of tier 1 capital.
One commenter proposed that the limit be raised to at least 2.5
percent of total capital. Several commenters noted that the existing
general consent authority in Regulation K sets the limit at 5 percent
of tier 1 capital, and advocated retention of the higher limit.
[[Page 67052]]
The Board notes, however, that the current limit is expressed as the
lesser of $25 million or 5 percent of tier 1 capital; the $25 million
limit on general consent investments has proved to be the constraining
factor, particularly for U.S. banking organizations that would meet the
strongly capitalized standard. The Board believes that a general
consent limit of 5 percent of tier 1 capital, in the absence of an
absolute dollar cap, would be too high even for organizations that are
strongly capitalized and well managed because an initial capital
investment in, for example, a subsidiary, may be leveraged many times
resulting in a potential total exposure far in excess of the initial 5%
of capital. The Board has therefore decided to retain the proposed 2
percent limit in the final rule.
In response to a comment seeking clarification that the existing
authorization for general consent investments will continue to be
available, the Board notes that the expanded authority is parallel
authority for making investments by banking organizations that meet the
strongly capitalized and well managed standards. As is clear from
section 211.5(c)(2)(i)(B) and (C) of Regulation K, however, the limits
on investment in any one organization apply on a cumulative basis over
time and include investments made under the existing as well as the
expanded authority.
Several commenters argued that expanded authority should be
available for additional investments in existing subsidiaries. The
Board notes that, as indicated in section 211.5(c)(2)(iv)(D) of the
final rule, using the expanded authority for making additional
investments in existing subsidiaries and joint ventures is permissible
under the terms of the final rule, subject to the investment limits and
the other investment restrictions.
Aggregate Investment Limit
The proposed rule provided for an overall aggregate investment
limit on all investments made during the previous 12-month period under
the existing and the expanded authority. Under this limit, all such
investments, when aggregated with the proposed investment, may not
exceed the lesser of 50 percent of the Edge or agreement corporation's
total capital or 5 percent of the parent member bank's total capital,
in the case of an Edge or agreement corporation, or 5 percent of its
total capital, in the case of a member bank or a bank holding company.
A number of commenters supported the Board's position that the
aggregate limits apply only to general consent investments and not to
investments made pursuant to prior notice or specific consent.
However, one commenter argued that investments made under existing
general consent authority should not count toward the aggregate limit
because once the aggregate limit is reached, prior notice would be
required for small investments representing little risk to the
investor. The Board agrees that the additional regulatory burden
associated with including investments made under the existing general
consent authority in calculating the aggregate limits outweighs any
supervisory benefits. Accordingly, the aggregate limit shall apply only
to investments made under the expanded general consent authority.
The proposal also provided that, in determining compliance with the
aggregate limits and in order to avoid double counting of investments,
an investment in a subsidiary shall be counted only once
notwithstanding that such subsidiary may, within the next 12 months,
downstream all or part of such investment to another subsidiary.
Several commenters argued for a longer time period in which to make
downstream investments or that no time limit should be imposed. The
Board believes the 12 month time limit should be retained as it strikes
an appropriate balance between easing regulatory burden and maintaining
adequate oversight, given that the condition of a banking organization
may change over time. Supervisory views regarding downstreaming
investments also may change over time in light of changed
circumstances.
One commenter argued that downstream investments should not be
subject to the individual investment limits as well as the aggregate
investment limits. However, the Board believes that supervisory
concerns regarding the need to monitor diversification of investments
in view of any changed circumstances relating to the investor means
that the limits on investments in one organization should include
downstream investments.
Finally, a commenter argued that restructurings (through the
contribution of an investment from one affiliate to another) should
also be encompassed within the same exclusion as that provided for
downstream investments. The Board notes in response to this comment
that Regulation K already provides general consent authority for
transfers among affiliates at net asset value.
Eligible Investments
The proposal limited the types of investments eligible for the
expanded authority, as well as the types of activities that may be
conducted by the organization in which the investment is to be made.
Ineligible investments included an investor's initial entry into a
foreign country, the establishment or acquisition of an initial
subsidiary bank in a foreign country, investments in general
partnerships or unlimited liability companies, and an acquisition of
shares or assets of a corporation that is not an affiliate of the
investor. Exclusion of the latter type of acquisition was intended to
limit the expanded authority to investments in de novo subsidiaries
(including subsequent investments in such subsidiaries) by excluding
the acquisition of going concerns.
Commenters requested clarification as to whether additional
investments made in existing subsidiaries and joint ventures would be
eligible investments under the expanded authority. The final rule
authorizes investments in existing subsidiaries and joint ventures,
provided they meet the remaining criteria for eligible investments and
the criteria for eligible activities.
Several commenters opposed the proposal's exclusion of initial
acquisitions of going concerns from the expanded investment authority.
However, the Board continues to believe such exclusion is appropriate
in light of the potential additional risk associated with such
investments. These risks are greater than simply the amount of capital
invested, extending also, for example, to the value and quality of the
acquired organization's assets. The Board therefore considers that
prior notice of such an investment is appropriate.
Several commenters argued that the acquisition or establishment of
an initial bank subsidiary in a foreign country should be permissible
without prior notice to the Board where the investor already has a
branch in that country. The Board believes that such a change may be
inconsistent with its responsibility as home country supervisor under
the Minimum Standards for Supervision of Internationally Active Banks
established by the Basle Supervisors Committee, in those cases where
the Board has not previously approved or reviewed the establishment of
a significant subsidiary bank in that country. The Minimum Standards
contemplate that the home country supervisor should specifically
authorize any outward expansion by a bank, both to inform the home
country
[[Page 67053]]
supervisor of the intention of the bank to operate in another country
and to provide the host supervisor with the comfort that the home
supervisor does not object to the expansion and takes responsibility
for the supervision of the branch or subsidiary bank. Consequently, the
Board believes it is appropriate to retain the prior notice requirement
for establishment of an initial subsidiary bank in another country
under the expanded authority.
Post-investment Notice
The proposal required an investor making use of the expanded
authority to provide the Board with a post-investment notice within 10
business days of making the investment. However, the Board requested
comment on whether the requirements relating to the post-investment
notice could be incorporated into existing reporting requirements.
Several commenters argued the post-investment notice would be
unnecessary and inconsistent with the goal of reducing regulatory
burden, particularly since investors are required to report
acquisitions of shares in foreign organizations on an existing Federal
Reserve form (F.R. 2064) by the end of the month following the month in
which the investment was made. Commenters maintained that the Board
already has sufficient information to monitor investments in foreign
subsidiaries through existing reporting and examination authority.
Based upon the comments, the Board has decided to eliminate the 10
business day notice requirement. However, the Board has determined that
certain limited additional information that is not at present provided
in the FR 2064 is required to be submitted; such information may be
submitted on the same schedule as the FR 2064, namely, by the end of
the month following the month in which the investment was made.
The Board agrees with those commenters who argued that additional
information should be limited to cover specific areas of potential
risks regarding investments made under the expanded general consent
authority and accordingly has narrowed the information that would be
required to be submitted following exercise of the expanded authority.
More specifically, the information that would be required under the
final rule is limited to: the respective responsibilities of the
parties if the investment is a joint venture; one year projections for
the organization in which the investment is made; and, where the
investment is to redress a loss, a description of the reasons for the
loss and the steps taken to address the problem. This would provide to
the Board the minimum information necessary to monitor any additional
risks posed by such investments.
One commenter requested clarification as to whether or not the
post-investment notice is intended to cover investments made pursuant
to the existing general consent authority, which would make the
proposal more restrictive than the present requirements for general
consent investments. The Board notes that the post-investment notice
would be required only in relation to investments made under the
expanded authority.
In response to another comment, the Board wishes to clarify that
investments in newly established companies are not precluded by the
restriction on the acquisition of shares or assets of an organization
that is not an affiliate or joint venture of the investor.
Processing Procedures
The final rule incorporates the change in processing procedures
indicating that the 45 day period commences upon receipt of the notice
or application to invest in a foreign company. Commenters generally
supported this change in processing procedures.
Finally, one commenter noted generally that Regulation K is a
technically difficult regulation and expressed concern that the
proposed revisions, by incorporating additional technical language,
would have the side effect of further diminishing the readability of
the regulation. The Board notes that the five year review of Regulation
K mandated by the International Banking Act of 1978 is now underway.
Ways in which Regulation K may be simplified will be considered during
the course of that review.
Regulatory Flexibility Analysis
Pursuant to section 605(b) of the Regulatory Flexibility Act (Pub.
L. 96-354, 5 U.S.C. 601 et seq.), the Board certifies that this final
rule will not have a significant economic impact on a substantial
number of small entities that are subject to the regulation.
Pursuant to 5 U.S.C. 553(d), this amendment to Regulation K will
become effective immediately. This final rule grants an exemption for
certain U.S. banking organizations, and therefore the Board waives the
30 day general requirement for publication of a substantive rule.
Paperwork Reduction Act Analysis
In accordance with section 3506 of the Paperwork Reduction Act of
1995 (44 U.S.C. Ch. 35; 5 CFR 1320 Appendix A.1), the Board reviewed
the rule under the authority delegated to the Board by the Office of
Management and Budget.
The collection of information requirements in this regulation are
found in 12 CFR 211.5(c). The submission of this information is
mandatory under sections 25 and 25A of the Federal Reserve Act (12
U.S.C. 601-604(a) and 611-631) and sections 4(c)(13), 4(c)(14), and
5(c) of the Bank Holding Company Act (12 U.S.C. 1843(c)(13),
1843(c)(14) and 1844(c)) to evidence compliance with the requirements
of Regulation K. The Federal Reserve uses the information to monitor
the international operations of U.S. banking organizations, and to
fulfill its supervisory responsibilities under Regulation K. The
respondents are banks, bank holding companies, and Edge and agreement
corporations.
The Federal Reserve may not conduct or sponsor, and an organization
is not required to respond to, this information collection unless it
displays a currently valid OMB control number. The OMB control number
is 7100-0107.
No comments specifically addressing the estimate burden were
received.
The Federal Reserve estimates that, based on 1995 data, 10
responses per year will be filed by U.S. banking organizations under
the expanded general consent authority. Currently, the investments that
will be permitted under expanded general consent require prior
notification on the form for International Applications and Prior
Notifications under Subparts A and C of Regulation K (FR K-1; OMB No.
7100-0107). The estimated burden for each prior notification can range
from 1 to 10 hours, depending on its complexity. Under the revised
rule, an investor will no longer submit information prior to the
investment; instead, it will submit limited information regarding
specific areas of potential risks of the investment after the
investment is made. The volume of this information will vary depending
on the type of investment; the annual burden per respondent is
estimated to be .5 hours, on average. Based on an hourly cost of $20,
the annual cost to the public is estimated to be $100. There are no
start up costs or capital costs.
The information collected is not deemed confidential. The applying
organization has the opportunity to request confidentiality for
information that it believes will qualify for a Freedom of Information
Act exemption.
Send comments regarding the burden estimate, or any other aspect of
this collection of information, including suggestions for reducing the
burden, to:
[[Page 67054]]
Secretary, Board of Governors of the Federal Reserve System, 20th and C
Streets, N.W., Washington, DC 20551; and to the Office of Management
and Budget, Paperwork Reduction Project (7100-0107), Washington, DC
20503.
List of Subjects in 12 CFR Part 211
Exports, Federal Reserve System, Foreign banking, Holding
companies, Investments, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, the Board of Governors
amends 12 CFR Part 211 as set forth below:
PART 211--INTERNATIONAL BANKING OPERATIONS (REGULATION K)
1. The authority citation for Part 211 is revised to read as
follows:
Authority: 12 U.S.C. 221 et seq., 1818, 1841 et seq., 3101 et
seq., 3901 et seq.
2. Section 211.2 is amended by redesignating paragraphs (u) and (v)
as paragraphs (v) and (w), respectively, and by adding new paragraphs
(u) and (x) to read as follows:
Sec. 211.2 Definitions.
* * * * *
(u) Strongly capitalized means:
(1) In relation to a parent member bank, that the standards set out
in 12 CFR 208.33(b)(1) are satisfied; and
(2) In relation to an Edge or Agreement corporation or a bank
holding company, that it has a total risk-based capital ratio of 10.0
percent or greater.
* * * * *
(x) Well managed means that the Edge or Agreement corporation, its
parent member bank, if any, and the bank holding company have each
received a composite rating of 1 or 2 at its most recent examination or
review and are not subject to any supervisory enforcement action.
3. Section 211.5 is amended by:
a. Redesignating paragraphs (c)(2) and (c)(3) as paragraphs (c)(3)
and (c)(4) respectively and by adding a new paragraph (c)(2); and
b. In newly designated paragraph (c)(3), by removing the word
``accepted'' in the third sentence and adding in its place the word
``received''.
The addition reads as follows:
Sec. 211.5 Investments and activities abroad.
* * * * *
(c) * * *
* * * * *
(2)(i) Expanded general consent for de novo investments.
Notwithstanding the amount limitations of paragraph (c)(1) of this
section, but subject to the other limitations of this section, the
Board grants expanded general consent authority for investments in an
organization by an investor that is strongly capitalized and well
managed if:
(A) The activities of the organization are limited to activities in
which a national bank may engage directly or in which a subsidiary may
engage under paragraph (d) of this section;
(B) In the case of an investor that is an Edge corporation that is
not engaged in banking or an Agreement corporation, the total amount
invested in such organization (in one transaction or a series of
transactions) does not exceed the lesser of 20 percent of the
investor's Tier 1 capital or 2 percent of the Tier 1 capital of the
parent member bank;
(C) In the case of a bank holding company or member bank investor,
the total amount invested in such organization (in one transaction or a
series of transactions) directly or indirectly does not exceed 2
percent of the investor's Tier 1 capital;
(D) All investments made, directly or indirectly, by an Edge
corporation not engaged in banking or an Agreement corporation during
the previous 12-month period under paragraph (c)(2) of this section,
when aggregated with the proposed investment, would not exceed the
lesser of 50 percent of the total capital of the Edge or Agreement
corporation, or 5 percent of the total capital of the parent member
bank;
(E) All investments made, directly or indirectly, by a member bank
or a bank holding company during the previous 12-month period under
paragraph (c)(2) of this section, when aggregated with the proposed
investment, would not exceed 5 percent of its total capital; and
(F) Both before and immediately after the proposed investment the
investor, its parent member bank, if any, and any parent bank holding
company are strongly capitalized and well managed.
(ii) Determining aggregate investment limits. For purposes of
determining compliance with the aggregate investment limits set out in
paragraphs (c)(2)(i)(D) and (E) of this section, an investment by an
investor in a subsidiary shall be counted only once notwithstanding
that such subsidiary may, within 12 months of the date of making the
investment, downstream all or any part of such investment to another
subsidiary.
(iii) Additional investments. An investor that makes investments
under paragraph (c)(2)(i) of this section may also make additional
investments in an organization under the standards set forth in
paragraphs (c)(1)(ii), (c)(1)(iii) and (c)(1)(iv) of this section.
(iv) Ineligible investments. The following investments are not
eligible for the general consent under paragraph (c)(2)(i) of this
section:
(A) An investment in a foreign country where the investor does not
have an affiliate or a branch;
(B) The establishment or acquisition of an initial subsidiary bank
in a foreign country;
(C) Investments in general partnerships or unlimited liability
companies; and
(D) An acquisition of shares or assets of an organization that is
not an affiliate or joint venture of the investor.
(v) Post-investment notice. By the end of the month following the
month in which the investment is made, the investor shall provide the
Board with the following information relating to the investment:
(A) If the investment is in a joint venture, the respective
responsibilities of the parties to the joint venture;
(B) Projections for the organization in which the investment is
made for the first year following the investment; and
(C) Where the investment is made in an organization that incurred a
loss in the last year, a description of the reasons for the loss and
the steps taken to address the problem.
* * * * *
By order of the Board of Governors of the Federal Reserve
System, December 21, 1995.
Jennifer J. Johnson,
Deputy Secretary of the Board.
[FR Doc. 95-31362 Filed 12-27-95; 8:45 am]
BILLING CODE 6210-01-P
Complete official Federal Register PDF
FR Doc. 95-31327 Name Change for Consolidated Port of Philadelphia
[Federal Register Volume 60, Number 249 (Thursday, December 28, 1995)]
[Rules and Regulations]
[Pages 67055-67056]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31327]
=======================================================================
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DEPARTMENT OF THE TREASURY
Customs Service
19 CFR Part 101
[T.D. 96-4]
Name Change for Consolidated Port of Philadelphia
AGENCY: Customs Service, Treasury.
ACTION: Final rule.
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SUMMARY: This document amends the Customs Regulations to change the
name of the Consolidated Port of Philadelphia to the Consolidated Port
of the Delaware River and Bay, and to identify the participating ports
within the consolidated port. This change is being made to more clearly
reflect that the port encompasses Wilmington, Delaware and other cities
and territory as well as Philadelphia, Pennsylvania.
EFFECTIVE DATE: January 29, 1996.
FOR FURTHER INFORMATION CONTACT: A. Donald Gilman, Office of
Congressional and Public Affairs, (202) 927-1169.
SUPPLEMENTARY INFORMATION:
Background
Section 101.3, Customs Regulations (19 CFR 101.3), lists as one of
Customs ports of entry Philadelphia-Chester, Pa. and Wilmington, De.
This port includes the named cities and includes Camden, Gloucester
City and Salem, New Jersey and territory described in T. D. 84-195. The
port of entry is popularly known as the Consolidated Port of
Philadelphia.
After a meeting with trade community representatives from both
Wilmington, Delaware and Philadelphia, Pennsylvania, Customs proposed
in a document published in the Federal Register (60 FR 47505) on
September 13, 1995, that the name of the consolidated port should be
changed to the Consolidated Port of the Delaware River and Bay. The
name change would reflect that the port encompasses Wilmington,
Delaware and other cities and territory as well as Philadelphia,
Pennsylvania. As noted in the proposal, the Wilmington, Delaware trade
community strongly favors such a name change, and the Philadelphia
trade community has not expressed any objection to that suggestion.
Comments Received
A total of seven entities responded to the proposal. All seven were
in favor of the name change.
Conclusion
After review of the comments and further consideration, Customs has
determined to proceed with changing the name of the port.
Accordingly, Customs is amending section 101.3, Customs Regulations
(19 CFR 101.3) to change the name of the port of Philadelphia-Chester,
Pa. and Wilmington, De., popularly known as the Consolidated Port of
Philadelphia, to the Consolidated Port of the Delaware River and Bay,
and to identify the participating ports within the consolidated port.
Territory of the Consolidated Port
The geographical limits of the consolidated port are as follows:
The ports of Philadelphia, Pennsylvania (comprising the territory
within the corporate limits of Philadelphia, Pennsylvania, and Camden,
Gloucester City, and Salem, New Jersey; the territory within the limits
of the Boroughs of Brooklawn, National Park, and Paulsboro, and the
Townships of West Deptford and Greenwich, all in New Jersey; the
Borough of Folcroft and the Townships of Darby and Tinicum, all in
Pennsylvania; and the territory between the Delaware River and U. S.
Highway No. 13, in Bucks County, Pennsylvania, from the corporate
limits of Philadelphia to and including Morrisville, Pennsylvania; and
the territory between the Delaware River and U. S. Highway No. 130 and
U. S. Highway No. 206, in Camden, Burlington, and Mercer Counties, New
Jersey, from the corporate limits of Camden, New Jersey, to and
including Trenton, New Jersey); Chester, Pennsylvania (comprising the
territory within the corporate limits of Chester, Pennsylvania; the
territory within the limits of the Boroughs of Marcus Hook, Trainer,
Upland, Parkside, and Eddystone, and the Townships of Lower Chichester
and Ridley, all in Pennsylvania; and the territory extending along the
Pennsylvania side of the Delaware River from Darby Creek to the
Delaware State line, a distance of approximately 10 miles); and
Wilmington, Delaware (comprising the territory within the corporate
limits of Wilmington, Delaware; the territory within the limits of New
Castle, Newport, and Claymont, Delaware; the territory within the
limits of Carneys Point and Deep Water Point, New Jersey; and the
territory lying between U. S. Highway No. 13 and the Delaware River,
from the corporate limits of Wilmington to the Chesapeake and Delaware
Canal, Delaware.)
Regulatory Flexibility Act
Although this document was issued for public comment, it is not
subject to the notice and public procedure requirements of 5 U.S.C. 553
because it relates to agency management and organization. Accordingly,
the document is not subject to the regulatory analysis requirements of
5 U.S.C. 603 and 604.
Executive Order 12866
Agency organization matters such as this are exempt from Executive
Order 12866.
Drafting Information
The principal author of this document was Janet L. Johnson,
Regulations Branch. However, personnel from other offices participated
in its development.
List of Subjects in Part 101
Customs duties and inspection, Harbors, Organization and functions
(Government agencies), Seals and insignia, Vessels.
Amendments to the Regulations
For the reasons set forth in the preamble, part 101 of the Customs
Regulations (19 CFR 101) is amended as set forth below.
PART 101--GENERAL PROVISIONS
1. The general authority citation for Part 101 and the relevant
specific
[[Page 67056]]
authority citation continue to read as follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 2, 66, 1202 (General Note 20,
Harmonized Tariff Schedule of the United States), 1623, 1624.
Sections 101.3 and 101.4 also issued under 19 U.S.C. 1 and 58b;
* * * * *
2. Section 101.3(b)(1) is amended by removing the entry for
Philadelphia-Chester, PA and Wilmington, DE under the states of
Delaware, New Jersey, and Pennsylvania and adding in appropriate
alphabetical order under those states the following entries:
Sec. 101.3 Customs service ports and ports of entry.
* * * * *
(b) List of Ports of Entry and Service Ports. * * *
(1) Customs ports of entry. * * *
------------------------------------------------------------------------
Ports of entry Limits of port
------------------------------------------------------------------------
* * * *
* * *
Delaware
Wilmington................... Included in the Consolidated Port of the
Delaware River and Bay described in T.D.
96-4.
* * * *
* * *
New Jersey
Camden, Gloucester City, and Included in the Consolidated Port of the
Salem. Delaware River and Bay described in T.D.
96-4.
* * * *
* * *
Pennsylvania
Chester...................... Included in the Consolidated Port of the
Delaware River and Bay described in T.D.
96-4.
* * * *
* * *
Philadelphia................. Included in the Consolidated Port of the
Delaware River and Bay described in T.D.
96-4.
* * * *
* * *
------------------------------------------------------------------------
George J. Weise,
Commissioner of Customs.
Approved: December 13, 1995.
Dennis M. O'Connell,
Acting Deputy Assistant Secretary of the Treasury.
[FR Doc. 95-31327 Filed 12-27-95; 8:45 am]
BILLING CODE 4820-02-P
Complete official Federal Register PDF
FR Doc. 95-31325 Seizure of Merchandise
[Federal Register Volume 60, Number 249 (Thursday, December 28, 1995)]
[Rules and Regulations]
[Pages 67057-67059]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31325]
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
19 CFR Part 162
[T.D. 96-2]
RIN 1515-AB62
Seizure of Merchandise
AGENCY: Customs Service, Treasury.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this document, Customs is amending its regulations in
response to enactment of the Customs Modernization Act (``The Mod
Act''). Among its other provisions, the Mod Act amended Section 596(c)
of the Tariff Act of 1930 (19 U.S.C. 1595a(c)) to clarify and codify
Customs authority to seize and forfeit merchandise introduced or
attempted to be introduced into the United States contrary to law. The
Mod Act distinguishes between circumstances under which seizure of such
merchandise is mandatory and those in which it is permissive. The
amendment follows the legislation and specifies the circumstances under
which the mandatory and permissive seizures may take place. The
amendment also contains provisions for the detention of merchandise and
the remission of articles subject to seizure and forfeiture.
EFFECTIVE DATE: January 29, 1996.
FOR FURTHER INFORMATION CONTACT: Todd Schneider, Penalties Branch (202)
482-6950.
SUPPLEMENTARY INFORMATION:
Background
On December 8, 1993, the President signed the North American Free
Trade Agreement Implementation Act (Pub. L. 103-182). The Customs
Modernization portion of this Act (Title VI), popularly known as the
Customs Modernization Act, or ``the Mod Act'' became effective when it
was signed. Section 624 of Title VI amended section 596(c) of the
Tariff Act of 1930 (19 U.S.C. 1595a(c)) to codify and clarify the
circumstances under which merchandise may be seized and forfeited by
Customs.
On May 3, 1995, Customs published a Notice of Proposed Rulemaking
in the Federal Register (60 FR 21788), which proposed amending the
Customs Regulations to reflect these statutory
[[Page 67058]]
changes. Because no comments were received in response to the Notice of
Proposed Rulemaking, Customs is now amending its regulations as
proposed.
The Mod Act amendments to Sec. 1595a(c) provide that merchandise
which is introduced or attempted to be introduced into the United
States contrary to law shall be treated in two different manners
depending upon the circumstances of the introduction or attempted
introduction. In instances where the merchandise is stolen, smuggled,
or clandestinely imported or introduced or is a controlled substance or
contraband article, seizure is mandatory.
Paragraph (a) of the amendment addresses conditions where seizure
is mandatory.
Paragraph (b) of the amendment covers those situations in which
seizure is permissive. Seizure is permissive in instances where the
merchandise is subject to health, safety or conservation restrictions
which have not been complied with; when licenses, permits or other
authorizations of a U.S. Government agency are required but do not
accompany the merchandise; when copyright, trademark, or trade name
violations are involved; when trade dress merchandise involved is in
violation of a court order citing section 43 of the Act of July 5, 1946
(15 U.S.C. 1125); and when the merchandise is marked intentionally in
violation of section 304, Tariff Act of 1930 (19 U.S.C. 1304). The
legislation also provides that merchandise may be seized if it is
merchandise for which the importer has received written notices that
previous importations of identical merchandise from the same supplier
were found to have been marked in violation of section 304, Tariff Act
of 1930 (19 U.S.C. 1304).
Paragraph (c) of the amendment provides instructions on procedures
which Customs will follow in resolving questions which result from
seizures which have been made under section 1595a(c).
Paragraph (d) of the amendment contains language specifying that
merchandise which is misclassified or incorrectly valued, where there
is no issue of admissibility, will be subject to seizure only under
section 1592.
The Mod Act also provides that merchandise which is subject to
quantitative restrictions requiring a visa, permit, license or other
similar document from the United States Government or a foreign
government or issuing authority pursuant to a bilateral or multilateral
agreement shall be subject to detention until the appropriate visa,
license, permit or similar document or stamp is presented to Customs.
However, if the visa, license, permit, or similar document or stamp is
counterfeit as presented, the merchandise may be seized. This provision
is contained in paragraph (e) of the amendment.
Regulatory Flexibility Act
Insofar as the regulations closely follow legislative direction,
pursuant to the provisions of the Regulatory Flexibility Act (5 U.S.C.
601, et seq.), it is certified that the amendment will not have a
significant economic impact on a substantial number of small entities.
Accordingly, it is not subject to the regulatory analysis or other
requirements of 5 U.S.C. 603 and 604.
Executive Order 12866
This amendment does not meet the criteria for a ``significant
regulatory action'' as specified in E.O. 12866.
Drafting Information
The principal author of this document was Peter T. Lynch,
Regulations Branch, Office of Regulations and Rulings, U.S. Customs
Service. However, personnel from other offices participated in its
development.
List of Subjects in 19 CFR Part 162
Customs duties and inspection, Law enforcement, Seizures and
forfeitures.
Amendment
Section 162, Customs Regulations (19 CFR Part 162) is amended as
set forth below:
PART 162--RECORDKEEPING, INSPECTION, SEARCH, AND SEIZURE
1. The general authority citation for Part 162 is revised and a new
specific cite for Sec. 162.23 is added to read as follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1624.
* * * * *
Section 162.23 also issued under 19 U.S.C. 1595a(c).
* * * * *
2. In part 162, a new section 162.23 is added to read as follows:
Sec. 162.23 Seizure under section 596(c), Tariff Act of 1930, as
amended (19 U.S.C. 1595a(c)).
(a) Mandatory seizures. The following, if introduced or attempted
to be introduced into the United States contrary to law, shall be
seized pursuant to section 596(c), Tariff Act of 1930, as amended (19
U.S.C. 1595a(c)):
(1) Merchandise that is stolen, smuggled, or clandestinely imported
or introduced;
(2) A controlled substance, as defined in the Controlled Substance
Act (21 U.S.C. 801 et seq.), not imported in accordance with law; or
(3) A contraband article, as defined in section 1 of the Act of
August 9, 1939 (49 U.S.C. 80302).
(b) Permissive seizures. The following, if introduced or attempted
to be introduced into the United States contrary to law, may be seized
pursuant to section 596(c), Tariff Act of 1930, as amended (19 U.S.C.
1595a(c)):
(1) Merchandise the importation or entry of which is subject to any
restriction or prohibition imposed by law relating to health, safety,
or conservation, and which is not in compliance with the applicable
rule, regulation or statute;
(2) Merchandise the importation or entry of which requires a
license, permit or other authorization of a United States Government
agency, and which is not accompanied by such license, permit or
authorization;
(3) Merchandise or packaging in which copyright, trademark or trade
name protection violations are involved (including, but not limited to,
a violation of sections 42, 43 or 45 of the Act of July 5, 1946 (15
U.S.C. 1124, 1125 or 1127), sections 506 or 509 of title 17, United
States Code, or sections 2318 or 2320 of title 18, United States Code);
(4) Trade dress merchandise involved in the violation of a court
order citing section 43 of the Act of July 5, 1946 (15 U.S.C. 1125);
(5) Merchandise marked intentionally in violation of 19 U.S.C.
1304;
(6) Merchandise for which the importer has received written notices
that previous importations of identical merchandise from the same
supplier were found to have been in violation of 19 U.S.C. 1304; or
(7) Merchandise subject to quantitative restrictions, found to bear
a counterfeit visa, permit, license, or similar document, or stamp from
the United States or from a foreign government or issuing authority
pursuant to a multilateral or bilateral agreement (but see paragraph
(e), of this section).
(c) Resolution of seizure under Sec. 1595a(c). When merchandise is
either required or authorized to be seized under this section, the
forfeiture incurred may be remitted in accord with 19 U.S.C. 1618, to
include as a possible option the exportation of the merchandise under
such conditions as Customs shall impose, unless its release would
adversely affect health, safety, or conservation, or be in
contravention of a bilateral or multilateral agreement or treaty.
[[Page 67059]]
(d) Seizure under 19 U.S.C. 1592. If merchandise is imported,
introduced or attempted to be introduced contrary to a provision of law
governing its classification or value, and there is no issue of
admissibility, such merchandise shall not be seized pursuant to 19
U.S.C. 1595a(c). Any seizure of such merchandise shall be in accordance
with section 1592 (see Sec. 162.75 of this chapter).
(e) Detention only. Merchandise subject to quantitative
restrictions requiring a visa, permit, license, or other similar
document, or stamp from the United States Government or from a foreign
government or issuing authority pursuant to a bilateral or multilateral
agreement, shall be subject to detention in accordance with 19 U.S.C.
1499, unless the appropriate visa, permit, license, or similar
document, or stamp is presented to Customs (but see paragraph (b)(7),
of this section for instances when seizure may occur).
George J. Weise,
Commissioner of Customs.
Approved: November 29, 1995.
Dennis M. O'Connell,
Acting Deputy Assistant Secretary of the Treasury.
[FR Doc. 95-31325 Filed 12-27-95; 8:45 am]
BILLING CODE 4820-02-P
Complete official Federal Register PDF
FR Doc. 95-31324 Customs Service Field OrganizationSioux Falls, SD
[Federal Register Volume 60, Number 249 (Thursday, December 28, 1995)]
[Rules and Regulations]
[Pages 67056-67057]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31324]
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
19 CFR Part 101
[T.D. 96-3]
Customs Service Field Organization--Sioux Falls, SD
AGENCY: Customs Service, Treasury.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document amends the Customs Regulations pertaining to the
field organization of Customs by establishing Sioux Falls, South
Dakota, as a port of entry. The change is made as part of Customs
continuing efforts to obtain more efficient use of its personnel,
facilities, and resources and to provide better service to carriers,
importers, and the general public.
EFFECTIVE DATE: January 29, 1996.
FOR FURTHER INFORMATION CONTACT: Bob Jones, Office of Field Operations
(202-927-0456).
SUPPLEMENTARY INFORMATION:
Background
As part of its continuing efforts to obtain more efficient use of
its personnel, facilities, and resources and to provide better service
to carriers, importers, and the general public, Customs published a
document in the Federal Register (60 FR 52347) on October 6, 1995,
proposing to amend Sec. 101.3 of the Customs Regulations (19 CFR 101.3)
by establishing a port of entry at Sioux Falls, South Dakota
encompassing the counties of Minnehaha and Lincoln in the State of
South Dakota.
As the proposal stated, South Dakota presently does not have a port
of entry and the Governor of the State of South Dakota requested the
establishment of the port of entry in the state. In support of the
establishment of the port at Sioux Falls, it was stated to Customs that
the port would yield significant immediate and future economic benefits
for the State of South Dakota, including the retention and expansion of
jobs, the more efficient transportation of imported and exported
merchandise, the opportunity for the establishment of a foreign trade
zone, the expanded development of infrastructure within the proposed
port area, an enhanced business competitiveness for existing
enterprises and the opportunity to encourage new businesses to locate
within South Dakota.
As further stated in the proposal, the Customs office within the
port of entry would be located at the Joe Foss Field airport in Sioux
Falls, which is the largest urban area within the State of South
Dakota. It has been represented to Customs that the cost to the Federal
Government would only involve the services of one full-time Customs
official and therefore would be minimal compared to the significant
benefits that port of entry status would impart to the South Dakota
business community.
Sioux Falls is located at the junction of two major state
interstate highways (Interstate 90 and Interstate 29), is serviced by a
major national freight railway company, and is serviced at the Joe Foss
Field airport by national passenger and cargo airlines, express air
freight services and commuter airlines.
[[Page 67057]]
The proposal set forth representations to Customs that the greater
metropolitan areas of Sioux Falls has a population of 139,236 based on
1990 census figures and that a population of well over 300,000 exists
within a 70-mile radius of Sioux Falls. It was projected that existing
businesses would file between 2,709 and 3,253 import entries within the
proposed port of entry in the years 1996 through 1998, with no single
company accounting for more than half of the projected entries. It was
further stated in the request for a port of entry that the Sioux Falls
Regional Airport Authority is committed to making optimal use of
electronic date transfer capability to permit integration with the
Customs Automated Commercial System for processing entries. Regarding
the Joe Foss Field airport, it was stated the airport has exceptional
cargo and passenger facilities, that passenger areas can be secured to
accommodate international arrival passenger clearance, and that there
are several warehouse facilities in close proximity to the airport that
are suitable for the secure storage of cargo pending inspection and
release by Customs. Further, the Sioux Falls Regional Airport Authority
committed to providing certain space and equipment to Customs.
Based on the information provided to Customs, the proposal set
forth Customs belief that Sioux Falls meets the current minimum
criteria for port of entry designation set forth in T.D. 82-37 (47 FR
10137), as revised by T.D. 86-14 (51 FR 4559) and by T.D. 87-65 (52 FR
16328).
Determination
No comments were received in response to the proposal. After
further review and consideration by Customs, it has been determined to
establish Sioux Falls as a port of entry with port limits as described
below. Section 101.3 is amended accordingly. It is noted, however, that
because the representations set forth in the proposal rely on
potential, rather than actual, workload figures, Customs will in 3
years review the actual workload generated within the port of Sioux
Falls to evaluate whether Sioux Falls may retain port of entry status.
If that review indicates that the actual workload is below the standard
set forth in T.D. 82-37, as revised, procedures will be instituted to
revoke port of entry status. Of course, if port of entry status is
revoked, the City of Sioux Falls will have the opportunity to apply for
user fee airport status under 19 U.S.C. 58b.
Limits of Port of Entry
The geographical limits of the port of entry of Sioux Falls are as
follows:
All of Minnehaha and Lincoln Counties in the State of South Dakota.
Regulatory Flexibility Act and Executive Order 12866
Customs routinely establishes, expands, and consolidates Customs
ports of entry throughout the United States to accommodate the volume
of Customs-related activity in various parts of the country. Although
this document was issued for public comment, it is not subject to the
notice and public procedure requirements of 5 U.S.C. 553 because it
relates to agency management and organization. Accordingly, this
document is not subject to the provisions of the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). Agency organization matters such as this
are exempt from consideration under Executive Order 12866.
List of Subjects in 19 CFR Part 101
Customs duties and inspection, Harbors, Organization and functions
(Government agencies), Seals and insignia, Vessels.
Amendments to the Regulations
For the reason set forth in the preamble, part 101 of the Customs
Regulations is amended as set forth below:
PART 101--GENERAL PROVISIONS
1. The general authority citation for part 101 and specific
authority citation for Sec. 101.3 continue to read as follows:
Authority: 5 U.S.C. 301; 19 U.S.C. 2, 66, 1202 (General Note 20,
Harmonized Tariff Schedule of the United States), 1623, 1624.
Sections 101.3 and 101.4 also issued under 19 U.S.C. 1 and 58b;
* * * * *
2. Section 101.3(b)(1) is amended by adding the following entry in
appropriate alphabetical order:
Sec. 101.3 Customs service ports and ports of entry.
* * * * *
(b) * * *
(1) * * *
------------------------------------------------------------------------
Ports of entry Limits of port
------------------------------------------------------------------------
* * * * *
South Dakota
Sioux Falls................................ T. D. 96-3
* * * * *
------------------------------------------------------------------------
Approved: December 1, 1995.
George J. Weise,
Commissioner of Customs.
Dennis M. O'Connell,
Acting Deputy Assistant Secretary of the Treasury.
[FR Doc. 95-31324 Filed 12-27-95; 8:45 am]
BILLING CODE 4820-02-P
Complete official Federal Register PDF
FR Doc. 95-31291 Revision of Authority Citations
[Federal Register Volume 60, Number 249 (Thursday, December 28, 1995)]
[Rules and Regulations]
[Pages 67254-67257]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31291]
[[Page 67253]]
_______________________________________________________________________
Part IV
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Part 1, et al.
Authority Citations Revision; Final Rule
Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 /
Rules and Regulations
[[Page 67254]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 1, 11, 13, 14, 15, 21, 23, 25, 27, 29, 31, 33, 34, 35,
36, 39, 43, 45, 47, 49, 61, 63, 65, 67, 71, 73, 77, 91, 93, 95, 97,
99, 101, 103, 105, 107, 108, 109, 121, 125, 129, 133, 135, 137,
139, 141, 143, 145, 147, 150, 151, 152, 155, 156, 157, 158, 161,
169, 170, 171, 183, 185, 187, 189, 191, 198
[Docket No. 28417; Amendment Nos.: 1-41, 11-39, 13-25, 14-2, 15-3, 21-
72, 23-47, 25-85, 27-31, 29-37, 31-6, 33-16, 34-2, 35-7, 36-21, 39-
9473, 43-35, 45-22, 47-25, 49-10, 61-98, 63-30, 65-39, 67-16, 71-27,
73-7, 77-12, 91-246, 93-72, 95-394, 97-1703, 99-17, 101-7, 103-5, 105-
11, 107-8, 108-13, 109-2, 121-252, 125-24, 129-25, 133-13, 135-59, 137-
15, 139-21, 141-6, 143-5, 145-22, 147-7, 150-3, 151-40, 152-14, 155-2,
156-1, 157-7, 158-1, 161-1, 169-3, 170-2, 171-17, 183-10, 185-2, 187-6,
189-4, 191-3, 198-3]
Revision of Authority Citations
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This rule adopts new authority citations for Chapter I of
Title 14 of the Code of Federal Regulations (CFR). In 1994, the Federal
Aviation Act of 1958 and several other statutes conferring authority
upon the Federal Aviation Administration were recodified into positive
law. This document updates the authority citations listed in the Code
of Federal Regulations to reference the current law.
DATES: This final rule is effective December 28, 1995. Comments on this
final rule must be received by March 1, 1996.
ADDRESSES: Comments on this final rule should be mailed, in triplicate,
to: Federal Aviation Administration, Office of the Chief Counsel,
Attention: Rules Docket (AGC-200), Docket No. 28417, 800 Independence
Avenue, SW., Washington, DC 20951. Comments delivered must be marked
Docket No. 28417. Comments may be examined in room 915G weekdays
between 8:30 a.m. and 5 p.m., except on Federal holidays.
FOR FURTHER INFORMATION CONTACT: Karen Petronis, Office of the Chief
Counsel, Regulations Division, AGC-210, Federal Aviation
Administration, 800 Independence Ave., SW., Washington, DC 20591;
telephone: 202-267-3073.
SUPPLEMENTARY INFORMATION: In July 1994, the Federal Aviation Act of
1958 and numerous other pieces of legislation affecting transportation
in general were recodified. The statutory material became ``positive
law'' and was recodified at 49 U.S.C. 1101 et seq.
The Federal Aviation Administration is amending the authority
citations for its regulations in Chapter I of 14 CFR to reflect the
recodification of its statutory authority. No substantive change was
intended to any statutory authority by the recodification, and no
substantive change is introduced to any regulation by this change.
Although this action is in the form of a final rule and was not
preceded by notice and an opportunity for public comment, comments are
invited on this action. Interested persons are invited to comment by
submitting such written data, views, or arguments as they may desire by
March 1, 1996. Comments should identify the rules docket number and be
submitted to the address specified under the caption ADDRESSES.
Because of the editorial nature of this change, it has been
determined that prior notice is unnecessary under the Administrative
Procedure Act. It has also been determined that this final rule is not
a ``significant regulatory action'' under Executive Order 12866, nor is
it a significant action under DOT regulatory policies and procedures
(44 FR 11034, February 26, 1979). Further, the editorial nature of this
change has no known or anticipated economic impact; accordingly, no
regulatory analysis has been prepared.
Adoption of the Amendment
In consideration of the forgoing, the Federal Aviation
Administration amends 14 CFR Chapter I as follows:
PART 1--DEFINITIONS AND ABBREVIATIONS
1. The authority citation for part 1 is revised to read as follows:
-Authority: 49 U.S.C. 106(g), 40113, 44701.
PART 11--GENERAL RULE-MAKING PROCEDURES
2. The authority citation for part 11 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40101, 40103, 40105, 40109, 40113,
44110, 44502, 44701-44702, 44711, 46102.
PART 13--INVESTIGATIVE AND ENFORCEMENT PROCEDURES
3. The authority citation for part 13 is revised to read as
follows:
Authority: 18 U.S.C. 6002; 49 U.S.C. 106(g), 5121-5124, 40113-
40114, 44103-44106, 44702-44703, 44709-44710, 44713, 46101-46110,
46301-46316, 46501-46502, 46504-46507, 47106, 47111, 47122, 47306,
47531-47532.
PART 14--RULES IMPLEMENTING THE EQUAL ACCESS TO JUSTICE ACT OF 1980
4. The authority citation for part 14 is revised to read as
follows:
Authority: 5 U.S.C. 504; 49 U.S.C. 106(g), 40113, 46104.
PART 15--ADMINISTRATIVE CLAIMS UNDER FEDERAL TORT CLAIMS ACT
5. The authority citation for part 15 is revised to read as
follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 2672, 2675; 49 U.S.C. 106(g),
40113, 44721.
PART 21--CERTIFICATION PROCEDURES FOR PRODUCTS AND PARTS
6. The authority citation for part 21 is revised to read as
follows:
Authority: 42 U.S.C. 7572; 49 U.S.C. 106(g), 40105, 40113,
44701-44702, 44707, 44709, 44711, 44713, 44715, 45303.
PART 23--AIRWORTHINESS STANDARDS: NORMAL, UTILITY, ACROBATIC, AND
COMMUTER CATEGORY AIRPLANES
7. The authority citation for part 23 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44702, 44704.
PART 25--AIRWORTHINESS STANDARDS: TRANSPORT CATEGORY AIRPLANES
8. The authority citation for part 25 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44702, 44704.
PART 27--AIRWORTHINESS STANDARDS: NORMAL CATEGORY ROTORCRAFT
9. The authority citation for part 27 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44702, 44704.
PART 29--AIRWORTHINESS STANDARDS: TRANSPORT CATEGORY ROTORCRAFT
10. The authority citation for part 29 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44702, 44704.
PART 31--AIRWORTHINESS STANDARDS; MANNED FREE BALLOONS
11. The authority citation for part 31 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44702, 44704.
[[Page 67255]]
PART 33--AIRWORTHINESS STANDARDS: AIRCRAFT ENGINES
12. The authority citation for part 33 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44702, 44704.
PART 34--FUEL VENTING AND EXHAUST EMISSION REQUIREMENTS FOR TURBINE
ENGINE POWERED AIRPLANES
13. The authority citation for part 34 is revised to read as
follows:
Authority: 42 U.S.C. 4321 et seq., 7572; 49 U.S.C. 106(g),
40113, 44701-44702, 44704, 44714.
PART 35--AIRWORTHINESS STANDARDS: PROPELLERS
14. The authority citation for part 35 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44702, 44704.
PART 36--NOISE STANDARDS: AIRCRAFT TYPE AND AIRWORTHINESS
CERTIFICATION
15. The authority citation for part 36 is revised to read as
follows:
Authority: 42 U.S.C. 4321 et seq.; 49 U.S.C. 106(g), 40113,
44701-44702, 44704, 44715; sec. 305, Pub. L. 96-193, 94 Stat. 50,
57; E.O. 11514, 35 FR 4247, 3 CFR, 1966-1970 Comp., p. 902.
PART 39--AIRWORTHINESS DIRECTIVES
16. The authority citation for part 39 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
PART 43--MAINTENANCE, PREVENTIVE MAINTENANCE, REBUILDING, AND
ALTERATION
17. The authority citation for part 43 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701, 44703, 44705, 44707,
44711, 44713, 44717.
PART 45--IDENTIFICATION AND REGISTRATION MARKING
18. The authority citation for part 45 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40103, 40109, 40113-40114, 44101-
44105, 44107-44108, 44110-44111, 44504, 44701, 44708-44709, 44711-
44713, 45302-45303, 46104, 46304, 46306, 47122.
PART 47--AIRCRAFT REGISTRATION
19. The authority citation for part 47 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113-40114, 44101-44108, 44110-
44111, 44703-44704, 44713, 45302, 46104, 46301; 4 U.S.T. 1830.
PART 49--RECORDING OF AIRCRAFT TITLES AND SECURITY DOCUMENTS
20. The authority citation for part 49 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113-40114, 44101-44108, 44110-
44111, 44704, 44713, 45302, 46104, 46301; 4 U.S.T. 1830.
PART 61--CERTIFICATION: PILOTS AND FLIGHT INSTRUCTORS
21. The authority citation for part 61 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-
44711, 45102-45103, 45301-45302.
PART 63--CERTIFICATION: FLIGHT CREWMEMBERS OTHER THAN PILOTS
22. The authority citation for part 63 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-
44711, 45102-45103, 45301-45302.
PART 65--CERTIFICATION: AIRMEN OTHER THAN FLIGHT CREWMEMBERS
23. The authority citation for part 65 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-
44711, 45102-45103, 45301-45302.
PART 67--MEDICAL STANDARDS AND CERTIFICATION
24. The authority citation for part 67 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-
44711, 45102-45103, 45301-45303.
PART 71--DESIGNATION OF CLASS A, CLASS B, CLASS C, CLASS D, AND
CLASS E AIRSPACE AREAS; AIRWAYS; ROUTES; AND REPORTING POINTS
25. The authority citation for part 71 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
PART 73--SPECIAL USE AIRSPACE
26. The authority citation for part 73 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
PART 77--OBJECTS AFFECTING NAVIGABLE AIRSPACE
27. The authority citation for part 77 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40103, 40113-40114, 44502, 44701,
44718, 46101-46102, 46104.
PART 91--GENERAL OPERATING AND FLIGHT RULES
28. The authority citation for part 91 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 40120, 44101, 44111,
44701, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306,
46315, 46316, 46502, 46504, 46506-46507, 47122, 47508, 47528-47531.
PART 93--SPECIAL AIR TRAFFIC RULES AND AIRPORT TRAFFIC PATTERNS
29. The authority citation for part 93 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40103, 40106, 40109, 40113, 44502,
44514, 44701, 44719, 46301.
PART 95--IFR ALTITUDES
30. The authority citation for part 95 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120,
44502, 44514, 44719, 44721.
PART 97--STANDARD INSTRUMENT APPROACH PROCEDURES
31. The authority citation for part 97 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40103, 40106, 40113-40114, 40120,
44502, 44514, 44701, 44719, 44721-44722.
PART 99--SECURITY CONTROL OF AIR TRAFFIC
32. The authority citation for part 99 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40101, 40103, 40106, 40113, 40120,
44502, 44721.
PART 101--MOORED BALLOONS, KITES, UNMANNED ROCKETS AND UNMANNED
FREE BALLOONS
33. The authority citation for part 101 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40103, 40113-40114, 45302, 44502,
44514, 44701-44702, 44721, 46308.
PART 103--ULTRALIGHT VEHICLES
34. The authority citation for part 103 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40103-40104, 40113, 44701.
PART 105--PARACHUTE JUMPING
35. The authority citation for part 105 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113-40114, 44701-44702, 44721.
[[Page 67256]]
PART 107--AIRPORT SECURITY
36. The authority citation for part 107 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 5103, 40113, 40119, 44701-44702,
44706, 44901-44905, 44907, 44913-44914, 44932, 44935-44936, 46105.
PART 108--AIRPLANE OPERATOR SECURITY
37. The authority citation for part 108 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 5103, 40113, 40119, 44701-44702,
44705, 44901-44905, 44907, 44913-44914, 44932, 44935-44936, 46105.
PART 109--INDIRECT AIR CARRIER SECURITY
38. The authority citation for part 109 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 5103, 40113, 40119, 44701-44702,
44705, 44901-44905, 44907, 44913-44914, 44932, 44935-44936, 46105.
PART 121--CERTIFICATION AND OPERATIONS: DOMESTIC, FLAG, AND
SUPPLEMENTAL AIR CARRIERS AND COMMERCIAL OPERATORS OF LARGE
AIRCRAFT
39. The authority citation for part 121 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 40119, 44101, 44701-44702,
44705, 44709-44711, 44713, 44716-44717, 44722, 44901, 44903-44904,
44912, 46105.
PART 125--CERTIFICATION AND OPERATIONS: AIRPLANES HAVING A SEATING
CAPACITY OF 20 OR MORE PASSENGERS OR A MAXIMUM PAYLOAD CAPACITY OF
6,000 POUNDS OR GREATER
40. The authority citation for part 125 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44702, 44705, 44710-
44711, 44713, 44716-44717, 44722.
PART 129--OPERATIONS: FOREIGN AIR CARRIERS AND FOREIGN OPERATORS OF
U.S.-REGISTERED AIRCRAFT ENGAGED IN COMMON CARRIAGE
41. The authority citation for part 129 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40104-40105, 40113, 40119, 44701-
44702, 44712, 44716-44717, 44722, 44901-44904, 44906.
PART 133--ROTORCRAFT EXTERNAL-LOAD OPERATIONS
42. The authority citation for part 133 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44702.
PART 135--AIR TAXI OPERATORS AND COMMERCIAL OPERATORS
43. The authority citation for part 135 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44702, 44705, 44709,
44711-44713, 44715-44717, 44722.
PART 137--AGRICULTURAL AIRCRAFT OPERATIONS
44. The authority citation for part 137 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40103, 40113, 44701-44702.
PART 139--CERTIFICATION AND OPERATIONS: LAND AIRPORTS SERVING
CERTAIN AIR CARRIERS
45. The authority citation for part 139 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44706, 44709, 44719.
PART 141--PILOT SCHOOLS
46. The authority citation for part 141 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709,
44711, 45102-45103, 45301-45302.
PART 143--GROUND INSTRUCTORS
47. The authority citation for part 143 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44703, 44707, 44709-
44711, 45102-45103, 45106, 45301-45302.
PART 145--REPAIR STATIONS
48. The authority citation for part 145 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44702, 44707, 44717.
PART 147--AVIATION MAINTENANCE TECHNICIAN SCHOOLS
49. The authority citation for part 147 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44701-44702, 44707-44709.
PART 150--AIRPORT NOISE COMPATIBILITY PLANNING
50. The authority citation for part 150 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 44715, 47101, 47501-47504.
PART 151--FEDERAL AID TO AIRPORTS
51. The authority citation for part 151 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40113, 47151, 47153.
PART 152--AIRPORT AID PROGRAM
52. The authority citation for part 152 is revised to read as
follows:
-Authority: 49 U.S.C. 106(g), 47106, 47127.
PART 155--RELEASE OF AIRPORT PROPERTY FROM SURPLUS PROPERTY
DISPOSAL RESTRICTIONS
53. The authority citation for part 155 is revised to read as
follows:
-Authority: 49 U.S.C. 106(g), 40113, 47151-47153.
PART 156--STATE BLOCK GRANT PILOT PROGRAM
54. The authority citation for part 156 is revised to read as
follows:
-Authority: 49 U.S.C. 106(g), 47101, 47128; 49 CFR 1.47(f), (k).
PART 157--NOTICE OF CONSTRUCTION, ALTERATION, ACTIVATION, AND
DEACTIVATION OF AIRPORTS
55. The authority citation for part 157 is revised to read as
follows:
-Authority: 49 U.S.C. 106(g), 40103, 40113, 44502.
PART 158--PASSENGER FACILITY CHARGES (PFC'S)
56. The authority citation for part 158 is revised to read as
follows:
-Authority: 49 U.S.C. 106(g), 40116-40117, 47111, 47114-47116.
PART 161--NOTICE AND APPROVAL OF AIRPORT NOISE AND ACCESS
RESTRICTIONS
57. The authority citation for part 161 is revised to read as
follows:
-Authority: 49 U.S.C. 106(g), 47523-47527, 47533.
PART 169--EXPENDITURE OF FEDERAL FUNDS FOR NONMILITARY AIRPORTS OR
AIR NAVIGATION FACILITIES THEREON
58. The authority citation for part 169 is revised to read as
follows:
-Authority: 49 U.S.C. 106(g), 40101-40107, 40113-40114, 44501-
44502, 46104, 47122, 47151-47153, 47302-47306.
PART 170--ESTABLISHMENT AND DISCONTINUANCE CRITERIA FOR AIR TRAFFIC
CONTROL SERVICES AND NAVIGATIONAL FACILITIES
59. The authority citation for part 170 is revised to read as
follows:
-
[[Page 67257]]
Authority: 49 U.S.C. 106(g), 40103-40107, 40113, 44502, 44701-
44702, 44708-44709, 44719, 44721-44722, 46308.
PART 171--NON-FEDERAL NAVIGATION FACILITIES
60. The authority citation for part 171 is revised to read as
follows:
-Authority: 49 U.S.C. 106(g), 40103-40107, 40109, 40113, 44502,
44701- 44702, 44708-44709, 44711, 44719-44721, 45303, 46308.
PART 183--REPRESENTATIVES OF THE ADMINISTRATOR
61. The authority citation for part 183 is revised to read as
follows:
-Authority: 31 U.S.C. 9701; 49 U.S.C. 106(g), 40113, 44702,
45303.
PART 185--TESTIMONY BY EMPLOYEES AND PRODUCTION OF RECORDS IN LEGAL
PROCEEDINGS, AND SERVICE OF LEGAL PROCESS AND PLEADINGS
62. The authority citation for part 185 is revised to read as
follows:
-Authority: 49 U.S.C. 106(g), 40113-40114, 46104; 49 CFR part 9.
PART 187--FEES
63. The authority citation for part 187 is revised to read as
follows:
-Authority: 31 U.S.C. 9701; 49 U.S.C. 106(g), 40104-40105,
40109, 40113-40114, 44702, 45301-45303.
PART 189--USE OF FEDERAL AVIATION ADMINISTRATION COMMUNICATIONS
SYSTEM
64. The authority citation for part 189 is revised to read as
follows:
-Authority: 31 U.S.C. 9701; 49 U.S.C. 106(g), 40104, 40113,
44502, 45303.
PART 191--WITHHOLDING SECURITY INFORMATION FROM DISCLOSURE UNDER
THE AIR TRANSPORTATION SECURITY ACT OF 1974
65. The authority citation for part 191 is revised to read as
follows:
-Authority: 49 U.S.C. 106(g), 5103, 40113, 40119, 44701-44702,
44705- 44706, 44901-44907, 44913-44914, 44932, 44935-44936, 46105.
PART 198--AVIATION INSURANCE
66. The authority citation for part 198 is revised to read as
follows:
-Authority: 49 U.S.C. 106(g), 40113, 44301-44310; 49 CFR
1.47(b).
Issued in Washington, DC on December 20, 1995.
Donald P. Byrne,
Assistant Chief Counsel for Regulations.
[FR Doc. 95-31291 Filed 12-27-95; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 95-31258 Certifications and Exemptions Under the International Regulations for Preventing Collisions at Sea, 1972; Amendment
[Federal Register Volume 60, Number 249 (Thursday, December 28, 1995)]
[Rules and Regulations]
[Pages 67059-67060]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31258]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Department of the Navy
32 CFR Part 706
Certifications and Exemptions Under the International Regulations
for Preventing Collisions at Sea, 1972; Amendment
AGENCY: Department of the Navy, DOD.
ACTION: Final Rule.
-----------------------------------------------------------------------
SUMMARY: The Department of the Navy is amending its certifications and
exemptions under the International Regulations for Preventing
Collisions at Sea, 1972 (72 COLREGS), to reflect that the Deputy
Assistant Judge Advocate General (Admiralty) of the Navy has determined
that USS LABOON (DDG 58) is a vessel of the Navy which, due to its
special construction and purpose, cannot fully comply with certain
provisions of the 72 COLREGS without interfering with its special
functions as a naval ship. The intended effect of this rule is to warn
mariners in waters where 72 COLREGS apply.
EFFECTIVE DATE: December 5, 1995.
FOR FURTHER INFORMATION CONTACT: Captain R. R. Pixa, JAGC, U.S. Navy,
Admiralty Counsel, Office of the Judge Advocate General, Navy
Department, 200 Stovall Street, Alexandria, VA 22332-2400; Telephone
number: (703) 325-9744.
SUPPLEMENTARY INFORMATION: Pursuant to the authority granted in 33
U.S.C. 1605, the Department of the Navy amends 32 CFR Part 706. This
amendment provides notice that the Deputy Assistant Judge Advocate
General (Admiralty) of the Navy, under authority delegated by the
Secretary of the Navy, has certified that USS LABOON (DDG 58) is a
vessel of the Navy which, due to its special construction and purpose,
cannot fully comply with the following specific provisions of 72
COLREGS without interfering with its special function as a naval ship:
Annex I, paragraph 3(a), pertaining to the location of the forward
masthead light in the forward quarter of the vessel, the placement of
the after masthead light, and the horizontal distance between the
forward and after masthead lights; Annex I, paragraph 2(f)(i)
pertaining to placement of the masthead light or lights above and clear
of all other lights and obstructions; and, Annex I, paragraph 3(c)
pertaining to placement of task lights not less than two meters from
the fore and aft centerline of the ship in the athwartship direction.
The Deputy Assistant Judge Advocate General (Admiralty) has also
certified that the lights involved are located in closest possible
compliance with the applicable 72 COLREGS requirements.
Moreover, it has been determined, in accordance with 32 CFR Parts
296 and 701, that publication of this amendment for public comment
prior to adoption is impracticable, unnecessary, and contrary to public
interest since it is based on technical findings that the placement of
lights on this vessel in a manner differently from that prescribed
herein will adversely affect the vessel's ability to perform its
military functions.
List of Subjects in 32 CFR Part 706
Marine safety, Navigation (water), and Vessels.
Accordingly, 32 CFR Part 706 is amended as follows:
PART 706--[AMENDED]
1. The authority citation for 32 CFR Part 706 continues to read:
Authority: 33 U.S.C. 1605.
2. Table Five of Sec. 706.2 is amended by revising the entry for
``USS LABOON'' to read as follows:
Sec. 706.2 Certifications of the Secretary of the Navy under Executive
Order 11964 and 33 U.S.C. 1605.
* * * * *
Table Five
----------------------------------------------------------------------------------------------------------------
After
Masthead masthead
lights not Forward light less
over all masthead than \1/2\ Percentage
other lights light not in ship's horizontal
Vessel No. and forward length aft separation
obstructions. quarter of of forward attained.
annex I, sec. ship. annex masthead
2(f) I, sec. 3(a) light. annex
I, sec. 3(a)
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
USS LABOON......................... DDG 58 X X X 20.4
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
[[Page 67060]]
Dated: December 5, 1995.
R.R. Pixa,
Captain, JAGC, U.S. Navy, Deputy Assistant Judge Advocate General
(Admiralty).
[FR Doc. 95-31258 Filed 12-27-95; 8:45 am]
BILLING CODE 3810-FF-P
Complete official Federal Register PDF
FR Doc. 95-31252 Final List of Fisheries for 1996
[Federal Register Volume 60, Number 249 (Thursday, December 28, 1995)]
[Rules and Regulations]
[Pages 67063-67090]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31252]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 229
[Docket No. 950605147-5288-03; I.D. 112895A]
RIN 0648-AH33
Final List of Fisheries for 1996
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In accordance with the Marine Mammal Protection Act of 1972,
as amended (MMPA), NMFS publishes its MMPA final List of Fisheries
(LOF) for 1996. The LOF classifies fisheries as either Category I, II,
or III, based on their
[[Page 67064]]
level of incidental mortalities and serious injuries of marine mammals.
After February 29, 1996, the owner or authorized representative of a
fishing vessel or nonvessel fishing gear (hereinafter vessel owner)
which participates in a Category I or II fishery must register for and
obtain a valid Authorization Certificate.
EFFECTIVE DATE: March 1, 1996.
ADDRESSES: A copy of the Environmental Assessment (EA) prepared for the
section 118 implementing regulations may be obtained by writing to
Chief, Marine Mammal Division, Office of Protected Resources, National
Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD
20910. Information and registration material for the region in which a
fishery occurs, and reporting forms, may be obtained from the following
addresses: NMFS, Northeast Region, One Blackburn Drive, Gloucester, MA
01930-2298, Attn: Sandra Arvilla; NMFS, Southeast Region, 9721
Executive Center Drive North, St Petersburg, FL 33702; NMFS, MMAP,
Protected Species Management Division, 501 W. Ocean Blvd., Suite 4200,
Long Beach, CA 90802-4213; NMFS, Northwest Region, 7600 Sand Point Way
NE, Seattle, WA 98115 Attn: Permits office; NMFS-PMRD, P.O. Box 22668,
709 West 9th Street, Juneau, AK 99082.
FOR FURTHER INFORMATION CONTACT: Robyn Angliss, Office of Protected
Resources, 301-713-2322; Douglas Beach, Northeast Region, 508-281-9254;
Charles Oravetz, Southeast Region, 813-570-5301; James Lecky, Southwest
Region, 310-980-4015; Brent Norberg, Northwest Region, 206-526-6140;
Steven Zimmerman, Alaska Region, 907-586-7235.
SUPPLEMENTARY INFORMATION: Publication of the LOF, which places all
U.S. commercial fisheries into three categories based on their levels
of incidental mortality and serious injury of marine mammals, is
required by section 118 of the MMPA. The following provides the history
of this final 1996 LOF, clarification of the process used to classify
fisheries, and a description of difference between the LOF published
under section 114 of the MMPA and this final 1996 LOF.
History of the Final List of Fisheries for 1996
A proposed LOF for 1996 was published on June 16, 1995 (60 FR
31666) with proposed regulations implementing section 118. An EA was
prepared concurrently with the development of the proposed regulations
and the LOF and was made available when the proposed regulations were
published. The public comment period for the proposed regulations ended
on July 31, 1995; the public comment period for the proposed LOF ended
September 14, 1995.
The process used to develop the proposed and final rule
implementing section 118 included many opportunities for public
involvement, such as working sessions, public hearings, written
comments, press releases, and a regulatory alert. Additional details on
these activities are found in the preamble to the final regulations
implementing section 118, published on August 30, 1995 (60 FR 45086).
During July 1995, NMFS held 10 public hearings at various locations
throughout the country to receive comments on the proposed implementing
regulations and proposed LOF. A total of 86 individuals attended these
hearings, 28 of whom submitted oral comments on the proposed rule, LOF
or both. NMFS also received 23 written letters of comment specifically
on the LOF. Comments were received from fishers, fishing industry
groups, environmental groups, animal rights groups, state departments
of fisheries, other executive branch departments, and members of the
general public.
This final LOF responds only to those public comments addressing
the proposed LOF. Comments addressing the proposed implementing
regulations for section 118 were included in the preamble to the
section 118 final implementing regulations.
Definitions of Category I, II, and III Fisheries
The regulations implementing section 118 of the MMPA introduced a
new three category fishery classification scheme (50 CFR part 229)
based on a two-tiered, stock-specific approach that first addresses the
total impact of all fisheries on each marine mammal stock and then
addresses the impact of individual fisheries on each stock. This
approach is based on the rate, in numbers of animals per year, of
serious injuries and mortalities due to commercial fishing relative to
a stock's potential biological removal (PBR) level.
Tier 1: If the total annual mortality and serious injury across all
fisheries that interact with a stock is less than or equal to 10
percent of the PBR of such a stock, then all fisheries interacting with
this stock are placed in Category III. Otherwise, these fisheries are
subject to the next tier to determine their classification.
Tier 2--Category I: Annual mortality and serious injury of a stock
in a given fishery is greater than or equal to 50 percent of the PBR
level.
Tier 2--Category II: Annual mortality and serious injury in a given
fishery is greater than 1 percent but less than 50 percent of the PBR
level.
Tier 2--Category III: Annual mortality and serious injury in a
given fishery is less than or equal to 1 percent of the PBR level.
Tier 1, therefore, considers the cumulative fishery mortality and
serious injury for a particular stock, while Tier 2 considers fishery-
specific mortality for a particular stock. Additional details regarding
how threshold percentages between the categories were determined are
provided in the final rule implementing section 118.
Differences Between the LOF Under Section 114 and the LOF Under Section
118
There are several key differences between the LOF required and
prepared under expired section 114 and the new LOF required and
prepared under section 118.
Under section 114, fisheries were classified based on the number of
incidental takes of marine mammals. As defined in 50 CFR 216.3, takes
include harassment. Under section 118, fisheries are to be classified
based on the number of serious injuries and mortalities that occur
incidental to that fishery. Also, under section 118 intentional lethal
mortalities and serious injuries of marine mammals are prohibited.
Thus, incidental or intentional harassment, or intentional lethal takes
are no longer used to classify fisheries into a particular category.
The fishery classification criteria under section 114 were
dependent on the rate of all marine mammal takes per 20 days. The
criteria are now based on the annual rate of incidental, species-
specific serious injury and mortality of marine mammals relative to a
particular marine mammal stock's PBR level.
Under section 114, fisheries were typically classified primarily
based on observer data and logbook data, although analogy to fisheries
with similar gear types could be made. Under the new regulations
pursuant to section 118, observer data, logbook data, stranding data,
fishers' reports, anecdotal reports, and analogy are used to classify
fisheries.
Both sections 114 and 118 require that the marine mammal species
involved in interactions with each fishery be identified in the LOF.
Under section 114, ``involved'' was interpreted broadly and included
those marine mammals
[[Page 67065]]
known or reported to be harassed by fisheries, and those marine mammals
suspected to be injured, killed, or harassed incidental to commercial
fishing operations. The list of marine mammal species identified in the
final LOF for 1996 includes only those marine mammals that have been
documented as having been injured or killed in observer programs,
logbook reports, strandings data, or by fishers' reports or anecdotal
reports. This list includes only those marine mammals that have been
injured or killed incidental to commercial fisheries since 1989.
Registration Requirements for Vessels Participating in Category I
and II Fisheries
Vessel owners participating in Category I or II fisheries must
register under the MMPA, as required by 50 CFR 229.4. Registration
under the MMPA is conducted on a NMFS Region-specific basis. Thus, how
registration materials are distributed and the cost of registration
differ between Regions. Under 50 CFR 229.4, the granting and
administration of Authorization certificates is to be integrated and
coordinated with existing fishery license, registration, or permit
systems and related programs, whenever possible. Alternative
registration programs have been or are being implemented in the Alaska
Region, Northwest Region, and Southeast Region. Special procedures and
instructions for registration in these Regions appear below.
If the granting and/or administration of authorizations has not
been integrated with state licensing, registration, or permit systems,
vessel owners may obtain registration forms from the NMFS Region in
which their fishery operates. NMFS Regional Offices will endeavor to
send these packets to known participants in Category I or II fisheries.
The registration packet will typically include an MMAP registration
form, a list of those fisheries in each region that require
authorization in order to incidentally kill or injure marine mammals
(Category I and II fisheries), and an explanation of the new management
regime, including instructions on reporting requirements. The
registration packet may also include an explanation of the changes in
the fishery classification criteria, guidance on deterring marine
mammals, and a reminder that intentional lethal takes of marine mammals
are no longer permitted except under certain specific conditions.
Vessel owners must submit the registration form and the $25 fee to
the NMFS Regional Office in which their fishery operates. NMFS will
send the vessel owner an Authorization Certificate, program decals, and
reporting forms within 60 days of receiving the registration form and
application fee.
Procedures for registering in each NMFS region are outlined in the
following section.
Region-Specific Registration Requirements for Category I and II
Fisheries
If the granting and administration of authorizations under 50 CFR
229.4 is not integrated or coordinated with existing fishery licenses,
registrations, or related programs, requests for registration forms and
completed registration forms should be sent to the NMFS Regional
Offices listed in this notice under ADDRESSES.
Alaska Region (AKR) MMAP Registration for 1996
Vessel owners in Category I and II state and Federal fisheries, as
well as all vessel owners with Alaska Department of Fish and Game
commercial vessel licenses, will receive a registration packet. Fishers
may not register with other regions for Alaska fisheries. If a fisher
plans to participate in a Category I or II fishery and does not receive
a registration packet, AKR should be contacted see ADDRESSES.
Northwest Region (NWR) MMAP Registration for 1996
Oregon: Under an agreement developed between NMFS and the Oregon
Department of Fish and Wildlife (ODFW), information collected for
licensing purposes by the state of Oregon will be provided to NMFS in
lieu of NMFS requiring a separate MMAP registration. Vessel owners in
Oregon who apply for and obtain a Developmental Fisheries Permit to
harvest and land swordfish using drift gillnet gear (CA/OR thresher
shark/swordfish drift gillnet fishery; Category I) or a Developmental
Fisheries Permit to harvest and land swordfish or blue shark using
surface longline gear (OR swordfish/blue shark surface longline
fishery; Category II) will automatically receive an Authorization for
the incidental take of marine mammals at the time of permit issuance.
Vessel owners will receive marine mammal injury and mortality reporting
forms along with their fisheries permit and Authorization.
The number of available Developmental Permits for these fisheries
is limited and the information necessary to fulfill the requirements of
the MMPA is already being collected by ODFW for Developmental Permit
processing. NMFS will provide limited support to ODFW for the issuance
of the Authorizations. Processing costs for ODFW are expected to be
minimal, and hence, MMAP registration fees will not be charged to
Developmental Fishery permitholders in 1996.
Since the Authorization will be issued in combination with the
Developmental Fisheries Permit, it is specific to the permit and will
only authorize the incidental take of marine mammals during fishing
activities conducted under this permit. Fishers who participate in the
CA/OR thresher shark/swordfish drift gillnet fishery under permits to
harvest and land in California must apply for and obtain a MMAP
Authorization Certificate from the NMFS Southwest Region.
ODFW will provide NMFS with the following information:
(1) Name, address, and phone number of the Vessel Owner;
(2) Name, address, and phone number of the Permit Holder;
(3) Vessel name, U.S. Coast Guard documentation number, or state
registration (OR) number (as applicable), and ODFW Developmental
Fishery Permit number for the permitted vessel. NMFS will incorporate
the information into a national data base of registered Category I and
II fishers.
Washington: Under an agreement developed between NMFS and the
Washington Department of Fish and Wildlife (WDFW), information
collected by the State for licensing purposes will be provided to NMFS
in lieu of NMFS requiring a separate MMAP registration. Vessel owners
in Washington who apply for and obtain a Puget Sound Gillnet License to
harvest and land salmon using drift gillnet gear (WA Puget Sound Region
salmon drift gillnet fishery; includes all inland waters south of US-
Canada border and eastward of the Bonilla-Tatoosh line--Treaty Indian
fishing is excluded; Category II) will automatically receive an
Authorization for the incidental take of marine mammals at the time of
license issuance. Fishers will receive marine mammal injury/mortality
reporting forms along with their fisheries license and Marine Mammal
Authorization.
The information necessary to fulfill the requirements of the MMPA
is already being collected by WDFW for Fishing License processing and
NMFS will provide limited support for the issuance of the
Authorization. Processing costs for WDFW are expected to be minimal,
and hence, MMAP registration fees will not be charged to licenseholders
in 1996. Since the
[[Page 67066]]
Authorization will be issued in combination with the Puget Sound
Gillnet License, it is specific to this license and will only authorize
the incidental take of marine mammals during fishing activities
conducted under this state-issued license. Fishers who participate in
other Category I or II fisheries to harvest and land fish in other
States must apply for and obtain an MMAP Authorization Certificate from
the appropriate NMFS regional office to cover that activity (see
procedures for the applicable state/Federal fishing activity).
WDFW will provide NMFS with a copy of the following information:
(1) Name, address, and phone number of the Owner of the Designated
Vessel;
(2) Name(s), address(es), and phone number(s) of License Owner,
Primary Operator, and Alternate Operators;
(3) Vessel name, U.S. Coast Guard documentation number, or state
registration (WN) number (as applicable), and WDFW registration number
of the designated vessel. NMFS will incorporate the information into a
national data base of registered Category I and II fishers.
Southwest Region (SWR) MMAP Registration for 1996
SWR is in the process of integrating MMAP registration for Category
I and II fisheries that occur in California with the California
Department of Fish and Game's commercial fishery permit registration
program. However, this integration will not be completed before 1997.
For this reason, Category I and II vessel owners in California will
continue to register with SWR. In December 1995, vessel owners who
engaged in a Category I or II fishery in 1995 will receive a
registration packet in the mail. Any Category I or II vessel owner who
has not received an application package by December 1, 1995, may
request one from NMFS SWR (see ADDRESSES).
Southeast Region (SER) MMAP Registration for 1996
The only state fisheries in Category I or II that are under SER
jurisdiction occur in North Carolina. State fishers in North Carolina
will receive a registration packet in the mail. If a fisher plans to
participate in any state or federal fishery in Category I or II and a
registration packet is not received, fishers should contact SER (see
ADDRESSES).
Northeast Region (NER) MMAP Registration for 1996
NER will distribute registration packets to those fishers on
existing lists of registrants in the MMEP program, fishing vessel
permit holder lists, and lists of state fishers obtained from New
Jersey, Delaware, Maryland, and Virginia. Fishers participating in
Category I or II fisheries should contact NER (see ADDRESSES).
Extension of Effective Period for Current List of Fisheries and
Extension of Current Registrations of Vessel Owners
The preamble to the final regulations implementing section 118
stated that vessel owners holding a valid Exemption Certificate under
section 114 will be deemed by NMFS to have registered under section 118
through December 31, 1995. Because it has taken longer than expected to
publish the MMPA final LOF for 1996, the current MMPA LOF will remain
in effect until March 1, 1996, and vessel owners holding a valid
Exemption Certificate under section 114 will be deemed to have
registered under section 118 until March 1, 1996. This extension will
also allow vessel owners sufficient time to register under section 118
of the MMPA. In general, NMFS recommends that completed registration
forms be submitted as soon as possible in advance of fishing in order
to ensure that a valid Authorization Certificate has been received.
Extension of Interim Permit for the Incidental Taking of Threatened
or Endangered Marine Mammals
On August 31, 1995, NMFS issued a single interim permit, valid
through December 31, 1995, to certain vessel owners currently
registered in Category I and II commercial fisheries for the
incidental, but not intentional, taking of marine mammal stocks listed
as threatened or endangered under the Endangered Species Act (60 FR
45399). Individual permits for 1996, 1997, and 1998 will be issued in
conjunction with the issuance Authorization Certificates under section
118 of the MMPA. Because the current MMPA LOF will remain in effect
until March 1, 1996, and vessel owners holding a valid Exemption
Certificate under section 114 will be deemed to have registered under
section 118 until March 1, 1996, NMFS hereby extends the interim permit
until March 1, 1996.
Reporting Requirements for All Vessels
Vessel owners or operators in Category I, II, or III fisheries must
comply with 50 CFR 229.6 and report all incidental mortality and injury
of marine mammals during the course of commercial fishing operations to
NMFS Headquarters or appropriate NMFS Regional Office. ``Injury'' is
defined in 50 CFR 229.2 as a wound or other physical harm. In addition,
any animal that ingests fishing gear, or any animal that is released
with fishing gear entangling, trailing or perforating any part of the
body will be considered injured and must be reported. Instructions for
submission of reports is found in 50 CFR 229.6(a).
Responses to Comments
Many comments were lengthy and raised many points of concern. Key
issues and concerns are summarized and responded to as follows:
Comments on Fisheries in the Alaska Region
Comment 1: Incidental and intentional mortality of marine mammals
appear to be under reported for the Alaska Yakutat salmon set gillnet
fishery, indicating the fishery should be in Category I instead of
Category II. It is strongly recommended that an observer program be
established in Yakutat and Dry Bay, so that more reliable information
on intentional killing of marine mammals might be available.
Response: The intentional lethal take of marine mammals was made
illegal by the 1994 amendments to the MMPA, except in situations where
it is imminently necessary in self defense or to save the life of a
person in immediate danger. Since intentional lethal takes are no
longer authorized, NMFS cannot use rates of this type of take to
categorize fisheries for the section 118 regime. Incidental, but not
intentional, marine mammal serious injury or mortality rates, are used
for categorizing fisheries for this final LOF. With the information
available to NMFS at this time, the incidental serious injury and
mortality rate of marine mammals in the Yakutat set gillnet fishery
places them in Category II. Fishery categories are evaluated each year,
and as more information becomes available, it will be used in these
evaluations.
Comment 2: The report of low injury rates to humpback whales and
Steller sea lions in many fisheries appears to be due to a lack of data
rather than to a solid understanding of the rate of injury.
Response: NMFS agrees that there is a lack of data regarding
serious injury and mortality rates for many fisheries in Alaska. Only
three fisheries are regularly observed for marine mammal interactions,
and only three other fisheries have ever been observed; one for two
seasons and two others for one season each. NMFS is currently
evaluating observer needs in the region and intends to formulate and
implement a long-term plan for observer coverage of Alaska fisheries.
The extent of future
[[Page 67067]]
coverage will depend on the availability of funds.
Comment 3: The Bering Sea and the Aleutian Islands trawl fisheries
should be separated for the purpose of setting categories. Many of the
commercial fishing quotas are set separately for the Bering Sea and
Aleutian districts and the ecosystems have somewhat different
characteristics. There is no justification for declaring both areas the
same fishery for purposes of categorization if marine mammal
interactions occur in only one area. To classify all the Bering Sea and
Aleutian trawl fisheries as the same category for marine mammal
interactions that occur in only one target fishery or in only one
portion of the area is arbitrary and capricious and inflicts
unwarranted regulations on a large number of vessels.
Response: Splitting the fishery into smaller statistical areas
would isolate the portions of those fisheries that are responsible for
marine mammal takes. However, because the Bering Sea and Aleutian
Islands statistical areas are contiguous and most participants fish in
both areas, categorizing the two areas separately would have little
practical value and would make management difficult.
Comment 4: Being classified as a Category I or II fishery imposes
serious reporting requirements on many small business entities.
Response: Since the publication of the final implementing
regulations for section 118 of the MMPA, on August 30, 1995, logbooks
of fishing effort and marine mammal interactions are no longer required
to be kept and turned in annually. The reporting requirements now in
effect have been reduced to submitting a one-page report on a form
supplied by NMFS within 48 hours of returning from the fishing trip (or
from tending non-vessel gear) in which an incidental injury or
mortality to a marine mammal occurred. Thus, the reporting requirements
are limited to occurrences of an injury or mortality to a marine mammal
in the course of fishing operations.
Comment 5: Although commenters supported the use of scientific
evidence to determine the total allowable fishery induced mortality for
a marine mammal stock, serious questions were raised regarding the data
used to classify the Bering Sea/Aleutian Island (BSAI) groundfish trawl
fishery. The take of two killer whales during the period 1990-93
resulted in moving BSAI trawl fisheries from Category III to Category
II. However, the 1995 marine mammal stock assessment for killer whales
indicates that the minimum population estimate is based on a direct
count, with no available correction factors. Commenters also indicated
that no reliable data on the population abundance of killer whale
stocks were available and neither was a reliable estimate of maximum
net productivity rate. Therefore the use of overly conservative
measures in setting the acceptable level of fishing induced mortality
should be discouraged. Better and more relevant data are needed before
reclassifying all BSAI trawl fisheries as Category II.
In the NMFS stock assessment report (SAR) for the Alaska region,
the killer whale chapter is divided into two sections, resident (759
animals) and non-resident (245 animals) populations. The total
population size is 1004 animals. The total killer whale take is two
animals--the population from which each was taken is listed as unknown.
A commenter calculated the PBR level based on the entire population
(1004 x 0.02 x 0.5) which resulted in a PBR level of 10.4 animals.
The annual take as reported in the SAR is 0.8 animals per year. This
number (0.8) divided by 10.4 animals (PBR) results in a take of 7.69
percent of PBR, not 10 percent as stated in the proposed LOF. It should
be noted that the two sections of the killer whale chapter each
calculate PBR level separately, 7.6 for resident killer whales and 2.4
for the non-resident population. The proposed LOF notice does not say
which number was used to move the BSAI trawl fishery into Category II.
Obviously, the killer whale population was not considered as a whole.
Response: NMFS believes that calculating the percentages of the PBR
level separately for the two killer whale stocks is the most risk-
averse approach.
The BSAI groundfish trawl fishery will be classified in Category
III. This fishery was proposed to be classified in Category II in the
proposed LOF based on serious injuries and mortalities of killer
whales. However, because the level of serious injury and mortality to
killer whales in this fishery is low (0.8 to 1.4 animals per year), the
fishery is observed with over 60 percent observer coverage, and the
population estimates for both the resident and transient stocks of
killer whales are direct counts of known individuals and thus
underestimate the total stock size, it is likely that the serious
injury or mortality of approximately one killer whale per year is not
adversely impacting the population. In addition, the final SARs for
resident and transient killer whales notes that these stocks are not
considered to be strategic.
If information becomes available that indicates that this observed
fishery has excessive incidental serious injuries or mortalities from
killer whale stocks or other stocks of marine mammals, it will be
reclassified as necessary.
Comment 6: The August 9, 1994, draft stock assessment shows
``zero'' Pacific coast fishery mortalities of humpback whales. Yet the
current proposed LOF would reclassify the Southeast Alaska salmon purse
seine fishery from Category III to Category II, because ``total known
humpback whale mortality and serious injury level across all fisheries
exceed 10 percent of this stock's PBR, and the known serious injury
level for this fishery is 0.4 animals per year.'' The EA implies that
the take in this fishery was documented through a single voluntary
report, but does not describe the nature of the interaction (i.e.,
mortality, entanglement, etc). According to the proposed LOF, the
Southeast Alaska salmon drift gillnet fishery also has a known
mortality and serious injury rate of 0.13 animals per year, but the EA
makes no mention of any humpback takes by this fishery.
Response: The reports of humpback whale mortalities in the
Southeast Alaska purse seine fishery were identified after the
publication of the August 9, 1994 draft stock assessments. There were
two mortalities of humpback whales in this fishery, one in 1989 and one
in 1994. In both cases, individual whales became entangled in purse
seine nets being actively fished. One whale was entangled in the bunt
and subsequently in the net. The second whale became entangled in the
lead line and then wrapped in the net as it tried to free itself. The
fishers involved tried to free the whales, but were unsuccessful. Data
on humpback whale entanglements in the Southeast Alaska salmon drift
gillnet fishery came from stranding network data, but, in addition,
there have been several cases where fishers have notified the Coast
Guard or NMFS, and NMFS personnel assisted with freeing the whales.
This kind of cooperation is greatly appreciated by NMFS.
Comment 7: One commenter was disturbed by the weight one
unsubstantiated anecdotal report of a marine mammal take was given in
determining the category status of the Southeast Alaska salmon purse
seine fishery and believed the procedures used to document and
authenticate this report were seriously lacking. The commenter asserted
that while NMFS may be erring on the side of caution because humpback
whales are a strategic stock and because of a low population estimate,
a low estimate does not validate an unconfirmed
[[Page 67068]]
report. Based on the commenter's experience, mortalities and serious
injuries to humpback whales due to interactions with purse seine gear
are extremely rare, and seiners will expend a great deal of effort to
avoid any interaction with whales because of damage to the gear and a
substantial loss of fishing time. The commenter believed that a
Category III listing is more appropriate for this fishery. Even if the
Southeast Alaska salmon purse seine fishery were to remain in Category
III, NMFS could still use alternative monitoring methods to acquire
reliable information on the fishery's humpback interactions.
Response: Fisheries are classified based on the annual number of
incidental serious injuries and mortalities relative to the PBR level
for each marine mammal stock. Thus, a fishery could be placed in
Category I or II as a result of a high mortality level or a low
population abundance estimate, or some combination of the two. The
weight that any number of serious injuries or mortalities in a given
marine mammal stock has on categorization of fisheries is directly
related to the PBR level for that stock. In the case of the central
North Pacific stock of humpback whales, the PBR level is 2.8 animals.
There were three mortalities reported for all fisheries between 1989
and 1994. In a Tier I categorization evaluation, this calculates to a
rate of 0.5 animals per year, or 17.9 percent of the PBR level. Because
this rate is higher than 10 percent of the PBR level, the effects of
individual fisheries must be evaluated. There were two reported
mortalities to humpbacks in the Southeast Alaska purse seine fishery,
one in 1989 and one in 1994. The mortality rate for this fishery
calculates to 0.33 animals per year, or 11.9 percent of the PBR level.
Because this rate is greater than 1 percent, but less than 50 percent
of the PBR level, the fishery is placed in Category II.
NMFS does not consider these Category III reports to be unreliable
and has full confidence in their veracity. These data were reported by
a crew member aboard the vessel(s) that interacted with the whales. The
reports have been given no special treatment or additional weight.
NMFS agrees that the mortality and serious injury rate of humpbacks
in the Southeast Alaska salmon purse seine fishery were low. However,
the annual rate of serious injury and mortality in this fishery does
fit the definition of a Category II fishery. If the categorization
criteria were ignored, and the fishery was placed in Category III, NMFS
would have no mechanism except for voluntary cooperation of Category
III fishers, short of an emergency rule, to monitor the fishery
interactions with humpbacks. Because the incidental serious injury or
mortality of a humpback whale in a purse seine net is a ``no-win''
situation for all parties concerned, NMFS would like to work with the
fishing industry to understand the nature of these interactions and
develop means for fishers to avoid them, as well as effective responses
if an interaction does occur.
Comment 8: Using the PBR level to classify fisheries has
advantages, but it is only as accurate as the data being used. It is
our understanding that the population estimate for humpbacks is 12
years old and is based on a survey done in Hawaii. How often will NMFS
update its population estimates for strategic stocks?
Response: Stock assessment reports (SAR) for strategic stocks are
required by the MMPA to be reviewed annually. Additional data for
population estimates will be gathered according to the greatest need
and subject to the availability of funds.
NMFS acknowledges that the population estimates for the Central
North Pacific stock of humpback whales are problematic, and intends to
address them in the next couple of years through new analyses of recent
data and population surveys.
Comment 9: The Alaska Peninsula/Aleutian Island salmon drift
gillnet should be classified in Category III and not in Category II as
proposed. The rationale presented for a Category III categorization is
that the drift gillnet fishery takes 1.8 percent of the PBR level for
Dall's porpoise, although the Alaskan Dall's porpoise stock is one of
the few stocks for which a determination has been made that the optimum
sustainable population level is met. The PBR level is calculated to be
1,537 and the SAR indicates total estimated fishery mortality is 41 per
year, well less than 10 percent of the PBR level. This, by itself,
should result in a Category III classification. Further, using
extrapolated data, the estimated mortality rate for the Alaska
Peninsula drift gillnet fishery is 1.8 percent, just over the Tier 2
threshold of 1 percent of the PBR level for a Category II
classification.
Response: NMFS agrees that classification of commercial fisheries
should be based on reliable information. The most reliable source for
this information are observer programs, which can be employed for
fisheries classified in Category I or II but can only be employed for a
Category III fishery if emergency regulations are in effect. Because of
this statutory limitation, NMFS is uncomfortable with classifying a
fishery as Category III if data exist that suggest the marine mammal
incidental take level may be above the relevant threshold. The Alaska
Peninsula/Aleutian Islands salmon drift gillnet fishery, like other
salmon drift gillnet fisheries in Alaska, has documented takes of a
variety of marine mammal stocks (Dall's porpoise, harbor porpoise,
harbor seals, northern fur seals, walrus and unidentified small
cetaceans). Because of inadequate observer coverage across fisheries in
Alaska, NMFS considers the current information on take levels for many
stocks to be underestimates. Dall's porpoise serious injury and
mortality is documented in the logbooks from six fisheries. Based on
those levels, NMFS believes that if more accurate observer information
were available, the level of Dall's porpoise takes would exceed the 10
percent threshold across all fisheries. In that case, the Alaska
Peninsula drift gillnet fishery, with its Dall's porpoise take level of
1.8 percent the PBR level, would be classified in Category II.
Additional support for placement of this fishery in Category II is
based on low levels of harbor porpoise serious injuries and mortalities
documented in logbook reports submitted in this fishery. Because the
documented annual serious injury and mortality of harbor porpoise in
Alaska is greater than the 10 percent threshold level across all
fisheries, and because logbook reports represent an underestimate of
the total number of serious injuries and mortalities in a fishery, the
total impact to the harbor porpoise population may be above the 1
percent of PBR level that would cause this fishery to be classified as
Category II.
Comment 10: The rationale regarding the proposed Category II
classification of Alaska Peninsula set gillnet fishery is weak. It
states that this fishery takes a substantial number of marine mammals.
The proposed LOF does not discuss what data suggest that levels of
mortality and serious injury may exceed 10 percent of each stock's PBR
level if observer information were available, why it is to be expected
that incidental mortality may exceed certain levels, or why this
fishery would interact with similar species as do set gillnet fisheries
in other areas. In this case, classification is too speculative and
supports classification of the Alaska Peninsula/Aleutian Islands salmon
set gillnet fishery in Category III.
Response: Because this fishery has documented mortalities and
serious injuries to marine mammals at an unknown rate, has never been
observed,
[[Page 67069]]
and uses a gear type with the potential to take various species of
marine mammals, NMFS believes that placing this fishery in Category II
is warranted until additional information can be collected. When more
reliable information becomes available, the level of marine mammal
mortality and serious injury in this fishery will be reassessed. (See
response to Comment 9 regarding the level of harbor porpoise serious
injuries and mortalities in this fishery.)
Comment 11: One commenter noted that there is no mention of
humpback whale interactions with the Prince William Sound salmon drift
gillnet or the AK Peninsula/Aleutians salmon drift gillnet fisheries.
The commenter believed that this species may have been inadvertently
omitted from the list of species involved in interactions with these
fisheries.
Response: NMFS has no information regarding any humpback
mortalities or serious injuries in the Prince William Sound or Alaska
Peninsula/Aleutian Islands drift gillnet fisheries.
Comment 12: The proposed LOF states that the classification of the
Southeast Alaska salmon drift gillnet fishery is based on observer and
strandings data and does not mention logbook data. The stock assessment
for humpback whales mentions that logbook data from salmon and herring
gillnet fisheries indicate that humpbacks are entangled. The commenter
presumed that since the Southeast Alaska salmon drift gillnet fishery
is the only gillnet fishery with humpbacks listed as taken, it is
logbook reports from this fishery that led to the statement in the
SARs. Given that logbooks are known to under report interactions, the
commenter believed that this fishery might be more appropriately
classified as a Category I fishery.
Response: Stranding data is used to document humpback whale
interactions with the Southeast Alaska salmon drift gillnet fishery.
There are no reported humpback mortalities or serious injuries for this
fishery in the logbook data. The currently available data support
placing this fishery in Category II based on humpback whale and harbor
porpoise mortalities. The annual level of harbor porpoise mortality and
serious injury in this fishery based on logbook reports was 3.25 per
year, or 1.3 percent of the PBR level. There were no humpback
mortalities or serious injuries reported in logbooks for drift gillnet
fisheries, but there were Category III reports from fishers indicating
mortalities occurred in 1989 and 1994, not 1993 and 1994 as stated in
the SAR.
Comment 13: Drift and set gillnet fisheries in Cook Inlet, Yakutat,
Alaska Peninsula/Aleutian Islands, Kodiak Island and Bristol Bay are
not listed as interacting with humpback whales. Given the information
in the SARs that logbook data from salmon and herring gillnet fisheries
indicate that humpbacks are entangled, these fisheries should be
considered to interact with this species. It also seems likely that
these fisheries all interact with harbor porpoise. The commenter noted
that a NMFS Federal Register notice dealing with harbor porpoise
acknowledged that wherever harbor porpoise and gillnets coincide,
harbor porpoise are caught. Further, in the Federal Register notice (60
FR 45399) that lists fisheries permitted to take endangered and
threatened species under section 101(a)(5)(e) of the MMPA, these set
gillnet fisheries are specifically permitted to take Steller sea lions,
although no Steller sea lions are listed in the LOF as interacting with
these fisheries. Also, the Southeast Alaska salmon purse seine, Alaska
herring roe food/bait purse seine fisheries and salmon troll do not
have humpbacks listed as a species with which it interacts, even though
the SARs indicate they do interact. Finally, there are fisheries with
``none documented'' listed as their interactions, but the commenter
believes that analogy to other fisheries might indicate otherwise.
Response: The list of marine mammals that interact with each
fishery has been revised. Only marine mammal species that have incurred
documented mortalities and injuries in a given fisheries are included
in this list. Analogy is not used to determine which stocks interact
with a particular fishery.
There may be discrepancies between the list of marine mammal
species identified in the LOF published pursuant to section 118 and the
list published pursuant to section 101(a)(5)(E), due to an attempt by
NMFS to issue interim permits to all fisheries that may have
interactions with marine mammal species listed under the Endangered
Species Act, while the section 118 LOF includes only those marine
mammal species or stocks with documented injuries and mortalities
incidental to a particular commercial fishery.
Comment 14a: The Alaska Kuskokwim, Yukon, Norton Sound, Kotzebue
salmon gillnet fisheries are acknowledged as likely to have occasional
interactions with marine mammals, yet have been placed in Category III
because these interactions are believed to ``result in directed takes
for subsistence purposes.'' Because these fisheries do not have
observer data available, and given that they interact with harbor
porpoise and beluga whales, the commenter believes these fisheries
should be placed in Category II and be subject to observer coverage.
Response: NMFS believes that virtually all takes of marine mammals
related to these fisheries are actually directed takes by Alaska
Natives for subsistence use. Any marine mammals that are taken
incidentally in these fisheries are likewise retained for subsistence
use by Alaskan Natives. NMFS is currently developing co-operative
agreements with Alaska Native organizations for the management of
marine mammals in Alaska used for subsistence purposes. The number of
animals taken in the above fisheries and used for subsistence will be
considered through co-management agreements rather than under section
118.
Comment 14b: The Alaska salmon troll and sablefish longline/set
line fisheries intentionally killed orcas in the past, and it is
optimistic to believe that these intentional killings will cease simply
because they are now illegal. The commenter believes that these
fisheries warrant further monitoring and should be placed in Category
II.
Response: See the response to Comment 1 for explanation of how
intentional lethal takes will be addressed by NMFS. NMFS does not have
data documenting incidental mortalities or serious injuries of killer
whales for these fisheries.
Comments on Fisheries in the Northwest Region
Comment 15: The Columbia River salmon fishery is appropriately
placed in Category III.
Response: NMFS agrees.
Comment 16: The California/Oregon/Washington (CA/OR/WA) thresher
shark/swordfish/blue shark drift gillnet fishery should be renamed in
the final LOF to accurately reflect the target species and the current
state licensing practices for the fishery. The Washington portion of
the fishery should be deleted since there is no Washington licensed
swordfish gillnet fishery.
Response: The CA/OR thresher shark/swordfish drift gillnet fishery
has been renamed. The reference to blue shark has been removed because
this species may not be landed in Oregon and is not a target species in
the California fishery. The reference to Washington has been removed
because this fishery does not occur in waters off Washington, nor does
Washington State permit the
[[Page 67070]]
harvest or landing of either thresher shark or swordfish.
Comment 17: NMFS should retain commercial fisheries classified in
Categories I or II under the Interim Exemption on the basis of
intentional lethal take in those categories until it has been
demonstrated that the intentional lethal takes have ceased.
Response: Because intentional lethal takes of marine mammals are
now illegal, except in cases of self defense or in order to save the
life of a person in imminent danger, and because fisheries must be
categorized based on incidental serious injury or mortality, commercial
fisheries will not be classified on the basis of the number of
intentional lethal takes. In addition, NMFS does not believe that
continuing registration requirements for fisheries that have been moved
to Category III based on the available information will have any effect
on the degree of compliance with the intentional lethal take
prohibition. To the extent that reporting requirements are consistent
for all fisheries, regardless of category, NMFS anticipates that
fishers reports will continue to provide qualitative information as an
indicator of incidental take levels. This qualitative information can
be useful in determining the need for more intensive monitoring. NMFS
will continue to investigate illegal takes of marine mammals regardless
of whether vessels are registered.
Comment 18: No information on incidental takes of marine mammals is
available for the Washington/Oregon (WA/OR) herring, smelt, shad,
sturgeon, bottom fish, mullet, perch, rockfish gillnet fishery. A lack
of information does not mean that no serious injuries or mortalities
have occurred. Analogy with other gillnet fisheries could justify
placing this fishery in Category II.
Response: As indicated in the EA, non-salmon gillnet fisheries in
the Northwest, (i.e., WA/OR herring, smelt, shad, sturgeon, bottomfish,
mullet, perch, and rockfish gillnet) are predominantly in-river
fisheries. NMFS is not aware of any information indicating that
incidental takes of marine mammals are occurring in these fisheries.
Comment 19: Because salmon net pen and ranch fisheries, and the
California/Oregon/Washington (CA/OR/WA) salmon troll fisheries have
histories of lethal takes of pinnipeds, these fisheries should remain
in Category II until NMFS receives documentation that the lethal takes
have ceased.
Response: The incidence of intentional lethal take was not used for
categorizing fisheries under section 118 of the MMPA. (See response to
Comment 17.)
Comment 20: Serious injuries and mortalities of humpback whales
caused the Southeast Alaska salmon purse seine fishery to be proposed
for Category II. By analogy, the Washington (WA) salmon purse seine
should also be placed in Category II and the humpback whale should be
listed in the LOF as an interacting species.
Response: There are no records of interactions between the
Washington salmon purse seine fishery and humpback whales. Humpback
whales are only rarely sighted in the inland waters of Washington where
the fishery operates.
Comment 21: The humpback whale should be listed in the LOF as an
interacting species for the Washington/Oregon/California (WA/OR/CA)
groundfish, bottomfish longline/set line fishery, and this fishery
should be considered for classification in Category II.
Response: There are no records of humpback whale interactions with
this fishery; thus this fishery is placed in Category III.
Comment 22: Analogy to the intentional lethal takes that occur
during commercial net pen fisheries should be used to place salmon
enhancement rearing pens in Category II.
Response: Because salmon enhancement rearing pens have not been
considered a commercial fishing operation, in the past they have not
been subject to requirements of section 118. If NMFS were to consider
this a commercial fishery, analogy would indicate correct placement of
salmon enhancement rearing pens in Category III, because interactions
would be similar to commercial net pens without any active deterrence
methods. As indicated in the EA, the incidence of mortality or serious
injury resulting from gear interactions with net pens is less than one
percent of the PBR for the stocks that interact with net pen fishery
operations (harbor seals and California sea lions).
Because enhancement rearing pens are typically not considered
commercial fisheries, NMFS will consider proposing to remove this
fishery from the LOF in a future proposed LOF.
Comments on Fisheries in the Northeast and Southeast Regions
Comment 23: The mid-water squid fishery defined in the proposed LOF
does not exist. It's a bottom trawl fishery, and not mid-water. It
should not be lumped with other mid-water gear.
Response: Mackerel, butterfish, and squid are fished by trawl in a
similar manner, with minimal modifications to gear. A mid-water squid
trawl fishery does exist, although it is not the preferred fishing
method for this species at this time. NMFS agrees that ``Atlantic mid-
water trawl'' may not be an accurate description of the fishery. In
this final LOF, this fishery is renamed ``Atlantic Squid, Mackerel,
Butterfish Trawl'' with no reference to the depth at which the gear is
fished. This fishery is placed in Category II based on serious injuries
and mortalities of pilot whales recorded in fishers' logbooks. In
addition, and regardless of the trawl method used, a potential for
incidental interactions between this fishery and marine mammals exists,
because squid, mackerel, and butterfish are important prey species for
marine mammals.
Comment 25: The number of marine mammal mortalities and serious
injuries as published in the proposed LOF and the method used to
extrapolate raw data into a total estimated take needs to be explained,
especially with regard to pilot whale mortalities in the longline
fishery. In addition, the source of the data indicating humpback whale
and minke whale interactions with the longline fishery should be cited.
The number of participants listed in Table 2, 830, is a considerable
overestimate of the total number of vessels in the fleet. If this
information were used to extrapolate the observer data, the total
number of takes in the fishery would be greatly overestimated. The
Atlantic Ocean, Caribbean and Gulf of Mexico swordfish, tuna, and shark
longline fishery should not be listed as a Category I fishery but
should remain in Category II.
Response: NMFS observers recorded one mortality of a pilot whale in
coverage scheduled between late 1992 and 1993. The mortality occurred
in the U.S. Atlantic Ocean. In addition, 24 non-lethal interactions (2
injuries and 22 unspecified interactions) of pilot whales have been
observed in the fishery. It is unknown how many of these animals
eventually died due to injuries resulting from entanglement. Observed
kills of other species include one Risso's dolphin in 1993, which
occurred in the Gulf of Mexico.
The annual level of serious injury and mortality for this fishery
was not calculated by extrapolating observed serious injuries and
mortalities to the entire fishery using the number of permitted
vessels. Rather, it was calculated by extrapolating observed serious
injury and mortality in the whole fishery using the total number of
sets reported in the mandatory fishing
[[Page 67071]]
vessel logbooks. The pilot whale mortality was not reported as coming
from the long- or short-finned stock; however, the estimated total
mortality of pilot whales exceeds the 50 percent of the PBR threshold
for either long-finned or short-finned pilot whales. Therefore
classification in Category I is warranted.
In addition, section 114 Marine Mammal Exemption Program (MMEP)
logbook data support a Category I classification. Injuries and
mortalities reported in the MMEP from 1990 through 1992 indicate that
an average of nine pilot whales are injured or killed in longline gear
each year. A variety of other marine mammal species, including but not
limited to bottlenose dolphins, harbor porpoise, Risso's dolphins, and
unidentified large cetaceans, have also been recorded as injured or
killed. NMFS has also received sighting reports (both at sea and
stranded) of whales carrying gear which may be attributable to the
pelagic longline fishery. Species listed in these reports include
humpback whale, sperm whale, long-finned pilot whale, and minke whale.
Comment 26: The Rhode Island, southern Massachusetts (to Monomoy
Island), and New York Bight (Raritan and Lower New York Bays) inshore
gillnet fishery, Long Island Sound inshore gillnet fishery, Delaware
Bay inshore gillnet fishery, and North Carolina inshore gillnet fishery
are currently, and incorrectly, listed as Category III fisheries. These
fisheries interact on a sufficiently high level with humpback whales,
minke whales, bottlenose dolphins and harbor porpoise that they should
be moved to Category II.
Response: These inshore and bay fisheries were divided out from
other mid-Atlantic coastal gillnet fisheries, because there were no
observed takes in these areas, and because it is believed that there is
a low probability of interaction. In the last several years, an
interaction problem with small cetaceans has been identified in the
mid-Atlantic based on observations of stranded animals. It is possible
to identify evidence of gillnet interactions from a stranded specimen,
but it is not yet possible to determine conclusively which gillnet
fishery is responsible for the interaction unless the gear is recovered
with the carcass, which is not usually the case. Based on the
geographic distribution of strandings, marine mammal high-use areas,
and concentrations of fishing gear, NMFS believes that the gillnet
interactions in the mid-Atlantic occur largely in areas outside the
``inshore'' fishery division lines. Placement of these inshore
fisheries into Category II is not warranted at this time. However,
recent information (1994-1995) indicates that marine mammal incidental
serious injury and mortality in some of these inshore fisheries may be
higher than originally believed. These fisheries will be re-evaluated
based on an examination of more recent stranding data when developing
the next proposed LOF.
Comment 27: The pair trawl fishery should be renamed, as it occurs
between Cape Hatteras and the Hague Line, and not in the Caribbean
Ocean, the Gulf of Mexico, or off the Grand Banks of Newfoundland. The
references to sharks should also be deleted from the name of the
fishery, as sharks are not targeted and are, in fact, minimally
represented in the bycatch. In addition, the number of participants in
the fishery needs to be updated, as the number included in the proposed
LOF is incorrect.
Response: NMFS agrees that the fishery should be renamed.
Therefore, the fishery is now listed as ``U.S. Atlantic Large Pelagics
Pair Trawl'' and the number of participants has been updated in the
final LOF.
Comment 28: The average annual serious injury and mortality
(extrapolated from observer data, 1992-93) of marine mammals
incidentally taken in the pair trawl fishery appears to be highly
inflated when compared to actual data, leading constituents to suspect
that the data used to compile this information were not correct. Data
from 1994 should be used in order for the LOF to be based on the best
available information. Members of the fishing community have worked to
change those aspects of the pair trawl fishery to reduce the number of
marine mammal takes that occur incidental to the fishery, and none of
those changes will have any significance in this final LOF. It is
unfair to impose additional regulations on the fishing community
without using every piece of data collected over all the years.
Response: See the response to Comment 25 for an explanation of how
observer data are extrapolated to provide an annual estimate of the
total serious injuries and mortalities of marine mammals in a
commercial fishery.
Development of the new fisheries data reporting and analysis
systems for the NMFS pair trawl observer program is ongoing. Observed
serious injuries and mortalities from the pair trawl fishery in 1994
cannot be extrapolated to total kill numbers until the fishing effort
data are available for the calculation. Data from the first half of
1994 were collected but were not available in the form necessary for
the calculations used in developing the proposed LOF and cannot be
finalized in time to allow the final LOF to be published before January
1, 1996. These data will be available for future consideration in
making any necessary revisions for the next proposed LOF. Although
serious injury and mortality of marine mammals incidental to the pair
trawl fishery may have been below average in 1994, preliminary analysis
of serious injury and mortality levels for 1995 suggests a bycatch
increase and indicates an increase in the number of marine mammal
species involved.
Comment 29: Data on marine mammal incidental mortalities and
serious injuries from the 1994 pair trawl fishery have been made
available to NMFS through reports and presentations in public forums.
Because observer coverage was very high in 1994, this data set
represents the most complete information for the pair trawl fishery to
date. This information should be used to classify the pair trawl
fishery.
Response: NMFS agrees that observer coverage was most intensive in
1994. However, incorporation of non-NMFS data presented in the
aforementioned report would not result in reclassifying the pair trawl
fishery as Category II. For example, if the non-NMFS information on the
number of observed mortalities of the offshore stock of bottlenose
dolphin and common dolphins are assumed to approximate the actual
values, averaging these values with NMFS mortality and serious injury
estimates from 1992 and 1993 results in average estimated serious
injuries and mortalities of 53 and 22 animals, respectively. Both
values exceed 50 percent of the PBR level for these stocks. In
addition, the serious injury and mortality levels in 1995 seem to have
increased substantially over the 1994 levels. To date, 25 marine
mammals have been observed seriously injured or killed, including three
dolphin species and long-finned pilot whales. Classifying this fishery
as Category I is warranted.
Comment 30: In order to categorize a particular fishery, it is
imperative that NMFS know how many vessels there are and where they
fish. It is incumbent upon NMFS to make this number reflect reality to
the best of its ability, because the extrapolation will make an
erroneous result that could have extraordinary consequences. For
example, for the pelagic longline fishery, NMFS has used 830 vessels to
extrapolate the estimate of the ``takes'' for the fishery. According to
the NMFS database, there were only 147 vessels that landed more than
one swordfish in each of 5 or more months in 1993.
[[Page 67072]]
Response: NMFS appreciates the information regarding the total
number of participants in the pelagic longline fishery. The numbers in
the ``Estimated number of vessels/persons'' column in the proposed LOF
sometimes represented the total number of permitted vessels/persons,
and sometimes represented the total number of active vessels/persons.
Because the number of active vessels/participants is a more valid
indicator of the total effort in a fishery, this was included in the
proposed LOF when that information was available. If the number of
active participants was not available, the number of, or an estimate
of, the permitted participants was used.
The number of vessels in the longline fishery was originally
estimated based on the number of swordfish permits issued. There were
361 vessels reporting swordfish catch in 1994. (See response to Comment
25 regarding extrapolation of observer data.)
Comment 31: A more appropriate method of calculating effort for the
fishery is the number of hooks used. If the reported number of hooks
were used for calculating this estimate, NMFS must recognize that a
hook in the Gulf of Mexico and a similar hook at the Grand Banks have a
very different likelihood of interacting with a particular marine
mammal species. NMFS should investigate splitting the longline fleet
into different statistical areas, preferably using the five areas used
by the fisheries statisticians.
It would be especially important to separate the fishery into
northern and southern components, as many of the interactions occur in
the northern portion of the fishery. For instance, it would be
unjustified to severely restrict or close the yellowfin tuna fishery in
the Gulf of Mexico if a northern marine mammal stock's PBR is taken.
This approach would be consistent with the approach used for some of
the Northwest Pacific fisheries that catch the same Pacific species
with the same fishing gear but are separately categorized by the bays,
inlets, sounds, etc., where they fish. Despite the effort involved to
consider the variables and complexity of this fishery, NMFS must not
take the ``easy'' way by leaving this wide-ranging fleet vulnerable to
a complete closure that may not be warranted.
Response: NMFS agrees that the pelagic longline data should be
analyzed to determine whether the fishery could be separated into
different statistical areas. The most logical division based on the
demographics of the fishery may be into a U.S. Atlantic component and a
U.S. Gulf of Mexico component. This will be investigated during the
development of the next proposed LOF.
The Take Reduction Teams that will be established pursuant to the
1994 MMPA amendments will consider all fisheries known to interact with
each strategic marine mammal stock. NMFS anticipates that the teams
will make recommendations on whether or not to proceed with a
geographic partitioning of the fishery. In addition, it does not
necessarily follow that the yellowfin tuna fishery in the Gulf of
Mexico would be closed if a northern marine mammal stock's PBR is
taken. Closures designed to protect marine mammals would most likely be
designed to encompass areas where those marine mammals occur. For
example, closures restricting groundfish gillnet effort in the Gulf of
Maine to reduce porpoise bycatch are designed to encompass areas of
high porpoise bycatch, not all areas where gillnetting traditionally
occurs.
Comment 32: The pelagic longline fishery is classified based on the
annual level of serious injury and mortality for pilot whales. The PBR
for pilot whales is based upon conservative calculations using dated
surveys.
Response: The 1995 SARs were prepared using the best available
data. Because NMFS conducted surveys in 1995, this information will be
incorporated in future calculations of PBR for pilot whale stocks. As
both short- and long-finned pilot whales are considered strategic
stocks, the SARs addressing these stocks must be reviewed on an annual
basis, and new information can be incorporated at that time.
Comment 33: Atlantic commercial passenger fishing vessels should be
categorized in the LOF to be consistent with the categorization of the
Pacific commercial passenger fishing vessels.
Response: The 1996 LOF contains a listing of ``Atlantic Commercial
Passenger Vessel'' in Category III. An estimate of 4000 participants is
also given.
Comment 34: Some fishery names in the proposed LOF are vague. For
example, there is a reference to the Atlantic mid-water trawl fishery,
which is proposed to include the ``Mid-Atlantic squid trawl,'' and the
``Mid-Atlantic mackerel trawl.'' There is a small amount of mackerel
caught by mid-water trawl, but the vast majority of squid are caught
using bottom trawl gear.
Response: See response to Comment 23 for a discussion of this
fishery.
Comment 35: The designation of the lobster fishery as Category III
should be revisited, given the interactions of lobster gear with
endangered right whales.
Response: NMFS will consider proposing to reclassify the lobster
fishery as Category II in developing the next proposed LOF.
Entanglement records indicate interactions between lobster pot
fisheries and right whales, humpback whales, finback whales, and minke
whales, but NMFS has no way of extrapolating these reports to the whole
fishery.
Comment 36: The commenter questioned whether the estimated total
take of 1.75 dolphins per year for the Atlantic menhaden fleet
justifies classifying this fishery in Category II. Subjecting a fleet
of vessels to permitting, decal, and observer requirements in these
circumstances appears to be excessive given the size of the interaction
and the fact that this particular fishery has been subject to intensive
bycatch analysis in the past few years by agency scientists.
Response: The bottlenose dolphin takes were incorrectly attributed
to the menhaden purse seine fishery. Because of this error, this
fishery was inappropriately proposed for classification in Category II
in the proposed LOF. This fishery is placed in Category III in this
final LOF.
Comment 37: The classification of the menhaden purse seine fishery
as a Category II fishery is based on a mortality and serious injury
rate of 1.75 Atlantic coastal bottlenose dolphins per year in the
entire fishery. As stated in the preamble to the proposed LOF, this
species does not occur in the Gulf of Maine and therefore ``it may be
appropriate to separate this fishery into northern and southern
components.'' In view of the absence of bottlenose dolphins from the
Gulf of Maine, the menhaden fishery should be separated into two
components north and south of Cape Cod, and the Gulf of Maine menhaden
purse seine fishery should continue to be classified as a Category III
fishery.
Response: See response to Comment 36 regarding takes of bottlenose
dolphins in the mid-Atlantic component of the menhaden purse seine
fishery. However, because of the geographic ranges of the fisheries,
the differences in marine mammal species likely to be encountered, and
the harvested age-class in the two fisheries, the Gulf of Maine
menhaden purse seine and the mid-Atlantic menhaden purse seine are
separate fisheries in the final LOF.
Comment 38: Serious injuries and mortalities of the western North
Atlantic coastal bottlenose dolphin drive the classification of several
fisheries (mid-
[[Page 67073]]
Atlantic menhaden purse seine, mid-Atlantic coastal gillnet fishery).
How is this population defined? Has it been shown to be reproductively
isolated from the offshore dolphin stock?
Response: The final SAR states that there are ``two hematologically
and morphologically distinct bottlenose dolphin ecotypes that
correspond to a shallow, warm water ecotype and a deep, cold water
ecotype . . . .'' (Blaylock, et al., 1995).
Comment 39: The Gulf of Maine small pelagics surface gillnet
fishery should be removed from Category 1. The EA states (p. 30) that
this fishery no longer operates.
Response: Additional research on the Gulf of Maine small pelagics
surface gillnet fishery indicates that, although there are few vessels
participating, the fishery is still operational. This fishery operates
in areas of high marine mammal concentrations. One report indicated
that a white-sided dolphin was killed incidental to this fishery, and
another report indicated that a humpback whale became entangled
incidental to fishing operations and was later released by divers.
Because there was a report of a mortality in this fishery, and because
information is not available to justify a placement in Category I or
III, the fishery is placed in Category II.
Comment 40: There is a small (5 boats) Gulf of Maine midwater trawl
fishery for herring, separate from the Category II Atlantic midwater
trawl fishery for squid and butterfish (620 boats). It should be listed
as a Category III fishery. These boats also fish for herring in
southern New England in the winter.
Response: In this final LOF, the trawl fishery for Atlantic herring
has been renamed the ``Northeast U.S. Atlantic Herring Trawl.'' This
fishery is separated from fisheries in the Southern North Atlantic and
Gulf of Mexico because the Atlantic herring species only ranges as far
south as Cape Hatteras. This fishery is placed in Category III, as no
incidental mortalities or serious injuries have been reported for this
fishery, nor are incidental mortalities or serious injuries expected to
occur incidental to this fishery.
Comment 41: A commenter supports placement of new fisheries in
Category II until observer data or other information can be used to
properly place the fishery, unless information already exists to place
a new fishery in a different category.
Response: NMFS agrees. This approach was included in the final
regulations implementing section 118.
Comment 42: According to the proposed LOF, the U.S. mid-Atlantic
coastal gillnet fishery interacts with humpback whales (PBR level = 1).
Published data indicate that stranded humpback whales in the mid-
Atlantic may be interacting at a significant rate with these fisheries
(Wiley et al., 1995). This information indicates that this fishery
should be classified as Category I, as it may be responsible for
greater than 1 percent of the annual mortality in this stock of
humpbacks.
Response: The PBR level for this humpback whale stock is currently
set at 10 animals. The stranding records mentioned in Wiley (1995)
demonstrate that stranded humpbacks in the mid-Atlantic have been
entangled in commercial fishing gear. However, none of those humpback
stranding records conclusively identify which fishery is responsible.
One of the fundamental problems with linking a large whale entanglement
to a particular fishery is that the whales are capable of carrying many
kinds of gear great distances from the original point of entanglement.
Reports received usually do not include gear identification information
that would identify the location in which the gear was originally set.
Recent cetacean entanglement records in the mid-Atlantic have been
linked to this fishery. These records suggest that, although the level
of humpback entanglement in coastal gillnets in the mid-Atlantic is
greater than 1 percent of PBR, there is no evidence to suggest that it
is greater than 50 percent of PBR. Therefore, classification of this
fishery as Category I is not warranted at this time.
Comment 43: There is no mention of interactions with northern right
whales in the U.S. South Atlantic shark gillnet fishery. State
officials concluded that a juvenile right whale that was entangled in
netting that likely came from this fishery was subsequently killed by a
large ship in 1994. Right whales should be added as an interacting
stock and this fishery should be classified as a Category I fishery.
Response: A seriously injured juvenile right whale was observed
swimming with its mother off the coast of Georgia. Marks on the animal
closely resembled the types of marks observed on other right whales
that have been entangled in gill nets. The juvenile whale had
apparently also been hit by the propellers of a ship, as its flukes had
been nearly severed. No gear was recovered from this animal and it is
unknown whether the animal actually died, although its demise was
highly likely based upon its injuries. The only gillnet fishery
operating in the vicinity was the Southeast U.S. Atlantic shark gill
net fishery. Because this fishery's interaction with right whales is
suspected but not confirmed, it is appropriate to place this fishery in
Category II.
Comment 44: The North Atlantic bottom trawl fishery was classified
as a Category III fishery despite observer data indicating a take of 62
percent of the PBR for striped dolphins. It is noted that there was
minimal observer coverage (1 percent) and there is, therefore, a high
coefficient of variation of the estimate. It is also possible with this
high coefficient of variance that the mortality estimate is low.
Furthermore, text in the proposed LOF states that the observers were
not assigned to monitor marine mammal mortality but to ``monitor
fishery management related issues.'' Similar observer objectives on the
Gulf of Maine gillnet vessels resulted in an underestimate of marine
mammal bycatch. NMFS should reconsider the category for this fishery.
Response: A justification for categorizing the North Atlantic
bottom trawl fishery in Category III was provided in the proposed LOF.
Although concerns regarding some observer programs that focus on
fishery monitoring have been raised, other observer programs with the
same goals, such as those operating in the BSAI groundfish trawl
fishery and the U.S. Atlantic large pelagics drift gillnet fishery,
have provided important information on the level of marine mammal
FR Doc. 95-31252 Final List of Fisheries for 1996
incidental serious injury and mortality. NMFS anticipates receiving
additional marine mammal bycatch information on the bottom trawl
fishery from observer programs directed at fish bycatch. This fishery
will be re-evaluated for potential listing in Category II in a future
proposed LOF. The trawl and gillnet fisheries have very different
methods for hauling the gear and removing catch from the gear. It is
much less likely that an observer will miss a marine mammal from a
trawl haul than from a gillnet haul.
Comment 45: It may be premature to place the finfish aquaculture
fishery in Category III based on a presumption that, since intentional
killing is now prohibited, participants will not shoot seals. Media
accounts of fishers shooting hundreds of seals belie the NMFS
contention that the industry is likely to stop killing seals
(justifying reclassification from Category II to Category III). Thus,
the fishery should remain in Category II.
Response: The finfish aquaculture fishery was placed in Category II
in the previous LOF, because intentional lethal takes of harbor seals
and grey seals were
[[Page 67074]]
thought to occur ``occasionally.'' The authority to intentionally kill
the seals was revoked by the 1994 MMPA amendments. A fishery
categorization under section 118 cannot be based on the supposition
that aquaculturists will violate the law. Anyone who intentionally
kills marine mammals to protect fishing gear or catch will be subject
to enforcement actions. This fishery will be re-evaluated in developing
a future proposed LOF based on recent seal entanglement records from
the fishery.
Comment 46: The Gulf of Mexico inshore gillnet fishery has not been
classified correctly. There are over 40 discrete stocks of bottlenose
dolphins in the Gulf of Mexico bay, sound and estuarine stocks, each
with a PBR of between 0 and 3 animals per year. If this fishery were to
be classified based on analogy to U.S. inshore fisheries in the mid-
Atlantic, then it must be supposed that it is likely to interact with
bottlenose dolphins (see Long Island sound inshore gillnet, Delaware
Bay inshore gillnet and North Carolina inshore gillnet). As such, this
fishery should be either a Category I or II fishery, as it would have
to kill 0.03 animals per year or less to be placed in Category III if
it is operating in an area coincident with any of the Gulf bays stocks.
If this fishery is not operating in bays, sounds and estuaries (as
could be the case in an ``inshore'' fishery) and is instead interacting
with coastal stocks, then the PBR for the Western Gulf of Mexico
coastal stock is 29 animals (0.2=1 percent of PBR); the PBR level for
the northern Gulf of Mexico coastal stock is 35 (0.3=1 percent of the
PBR level); and the PBR level for the Eastern Gulf of Mexico coastal
stock is 89 (0.8=1 percent of the PBR level). Thus, the fishery would
have to kill less than one of these animals each year in order to
properly be placed in Category III. This too appears unlikely, given
the propensity of gillnets to interact with bottlenose dolphins. It
would seem that this fishery is totally inappropriate for Category III.
This new fishery should be either Category I or Category II based on
its potential to interact with bottlenose dolphins.
Response: Because NMFS has no documented, direct observations of
serious injury or mortality to marine mammals in this fishery, it has
been classified as category III by analogy with Atlantic inshore
gillnet fisheries. However, as explained under responses to comments on
those fisheries, NMFS believes there is potential for interaction with
marine mammals in this fishery. Several bottlenose dolphins were
incidentally caught in research-related tangle nets set for turtles
between Texas and Louisiana between 1993 and 1995. These nets are
similar to, and used like nets used in the inshore gillnet fishery. In
addition, these nets were fully tended specifically to prevent marine
mammal entanglements from occurring. This information and any
additional information that can be obtained with respect to this
fishery may be considered in developing a future proposed LOF.
Comment 47: The offshore monkfish bottom gillnet fishery, a new
fishery to the proposed LOF for 1996, was placed in Category III based
on an expectation that there will be a remote likelihood of
interactions between bottom gillnet gear and marine mammals. While it
is true that deep-set gear is less likely to kill marine mammals, a
number of stocks (e.g., sperm whales) do use deep water areas, and
gillnets are the gear type most likely to interact with any marine
mammal species in the area. Until such time as it can be ascertained
that interactions are unlikely, this new fishery should be placed in
Category II to allow observer coverage and the gathering of more
reliable information on interactions.
Response: This fishery may have been listed incorrectly as Category
III in the proposed LOF. Because this fishery may have a high potential
to take several cetacean species based on analogy with other shelf-edge
fisheries such as the large pelagic drift gillnet fishery, NMFS will
examine available data during the development of the next proposed LOF
for reclassification of this fishery as Category II.
Since the publication of the proposed LOF, two other components of
the monkfish fishery have been recognized by NMFS. The following
provides a description of each component, and its treatment in this
final LOF:
U.S. Atlantic Monkfish Trawl Fishery, Unknown Number of Participants
The monkfish trawl fishery harvests monkfish in deep waters off the
Atlantic coast. Some participants in this fishery use a modified beam
trawl; most use otter trawls. In addition, some participants in the
scallop dredge fishery target monkfish using dredge gear during off-
days for scallops as well as simultaneously with scallops. Because the
target species, gear type, and geographic range of this fishery is
unique, it is considered a new fishery for the purposes of the LOF.
There are no documented reports of incidental serious injury or
mortality of marine mammals in this fishery, nor are incidental serious
injuries or mortalities expected. Accordingly, this fishery is placed
in Category III in this final LOF.
Monkfish Gillnetting in the Gulf of Maine
Fishers participating in the New England multispecies sink gillnet
fishery have targeted monkfish for several years. When targeting this
species, a large mesh (10-14'' stretched mesh) sink gillnet is used,
and the net is either tied down, or is set upright without floats using
a polyfoam core floatline. Reports indicate that at least some fishers
target monkfish in the Gulf of Maine near Jeffrey's Ledge. This fishery
is an extension of the New England multispecies sink gillnet fishery,
but has not been specifically included in the name of the fishery.
Because of the increasing dominance of monkfish in the groundfish
catch, the name of the New England multispecies sink gillnet fishery
has been changed to the ``New England multispecies sink gillnet fishery
(includes all species as defined in the Multispecies FMP, spiny
dogfish, and monkfish)'' to clarify that sink gillnet fishers targeting
monkfish are included.
Comment 48: The Gulf of Maine, U.S. mid-Atlantic tuna, shark,
swordfish hook-and-line/harpoon fishery is stated to have no documented
interactions with marine mammals. This is incorrect. For example, NMFS
records indicate that, on September 1, 1986 a humpback whale was
reported by the U.S. Coast Guard off Nantucket shoals with tuna floats
trailing; on November 14, 1986, the U.S. Coast Guard reported to NMFS
that a right whale calf was seen with ``a tuna dart with line
attached'' in its body; on July 7, 1989, a humpback whale was reported
by the Cetacean Research Unit in Gloucester, MA, to have a tuna line
from an identified Gloucester-based tuna boat around its left flipper
and flukes, with the float attached. Furthermore, on August 29, 1995, a
humpback whale was observed by both whale watching boats and the U.S.
Coast Guard on Jeffreys Ledge, with a tuna boat anchor, line and float
wrapped around and trailing from its body. While this most recent
sighting may not yet have appeared in the main data base, the three
earlier reports are from NMFS files. This information should be
corrected in the LOF, and this fishery should be considered for
reclassification.
Response: Because NMFS chose to use the most current data
available, entanglement references prior to the Marine Mammal Exemption
Program (MMEP) inception in 1989 were not used in developing the
proposed LOF. This fishery may be considered for re-
[[Page 67075]]
classification in Category II in a future proposed LOF based on recent
entanglement records. A humpback entanglement in tuna hand gear was
conclusively identified in 1995, and the recent references presented in
Comment 47, along with additional records, may be used to support this
re-classification.
Comment 49: NMFS entanglement reports indicate that a number of
animals have been seen entangled in trawl gear from an unspecified
fishery. On February 15, 1983, a right whale calf was reported dead in
an otter trawl, on February 23, 1986, a humpback whale was reported by
the Cetacean Research Unit off Jeffreys Ledge ``caught in otter
trawl,'' and on September 18, 1989, the Marine Mammal Stranding Center
in New Jersey reported a failed attempt to rescue a humpback whale from
trawl net and cable. Either the Gulf of Maine mackerel trawl or the
mid-Atlantic multi-species trawl, or another trawl fishery operating in
the area is apparently having interactions with endangered species.
Thus, it may not be accurate to say that these fisheries have no
documented interactions.
Response: The right whale calf entangled in otter trawl gear in
1983 was determined to have been dead and decomposed prior to this
observation and should therefore not be attributed to the otter trawl
fishery. The February 23, 1986 report of a humpback in an otter trawl
was an incomplete report. The whale was still alive, but it is likely
that the whale was weakened by a previous entanglement, a vessel
collision, or other injury or disease. The carcass was not recovered,
so no conclusions can be drawn from this incident. The September 18,
1989, entanglement of a humpback in trawl gear in New Jersey was not
conclusively linked to the specific trawl type, and there was no
information obtained that would give a location for the original point
of entanglement. Because the fishery that caused the above
entanglements cannot be specifically identified, the information may
not be used to classify fisheries at this time.
Comment 50: It is stated that the Gulf of Maine, U.S. mid-Atlantic
offshore lobster trap/pot fishery has no documented interactions. This
is incorrect. A right whale, which washed up dead this summer (1995) in
Rhode Island, was found with line from off-shore lobster gear wrapped
so tightly around its flippers, that it cut through the bone and likely
contributed to the animal's death. In addition, a NMFS report from
April 25, 1981, states that a minke whale was found entangled in
offshore lobster gear and released on April 28, 1981. Thus, it can be
seen that this fishery does have interactions.
Response: Because NMFS chose to use the most current data
available, entanglement references prior to the MMEP program inception
in 1989 were not used in developing the current proposed LOF. These
records may be considered in developing a future proposed LOF. The
right whale that stranded in Rhode Island in July of 1995 had been
entangled as early as December 1993, although the original point of
entanglement is unknown. Although entanglement experts on-scene
believed that the gear on the whale was probably offshore lobster gear,
this could not be confirmed because no identification unique to this
fishery was recovered. NMFS also anticipates that both inshore and
offshore lobster fisheries may be considered by the Take Reduction Team
that will be established to make recommendations to NMFS on reducing
interactions between fisheries and large cetaceans.
Comment 51: A number of fisheries have had species of marine
mammals listed as interacting species, based on analogy to similar
fisheries that have interactions with marine mammal species known to
occur in the area. The U.S. mid-Atlantic mixed species stop seine/weir
fishery should therefore not have its interactions reported as ``none
documented.'' Seines and weirs pose a significant interaction problem
for a number of species of marine mammals. For instance, in 1981 a
humpback whale was reported caught in a cod weir in Long Island and
released by the Okeanos Research Center. In 1988, a weir in Truro, MA,
caught two humpbacks: one on October 16 and one on December 6. Both
animals were released by the Center for Coastal Studies. Furthermore,
there is no justification for assuming that this fishery's interaction
potential is significantly different than that of the Gulf of Maine
herring and Atlantic stop seine/weir fishery, which has humpback, right
whale, minke whale and harbor porpoise interactions. The final LOF
should include these corrections.
Response: The entanglement records mentioned by the commenter were
not considered for the proposed LOF. These records and any records
received since the development of the proposed LOF may be considered
while developing a future proposed LOF. In general, NMFS believes that
potential for serious injury or mortality due to these fisheries is
low.
Comments on Fisheries in the Southwest Region
Comment 52: Reclassify the California (CA) set/drift gillnet
fisheries that use small mesh to Category II based on takes of central
California harbor porpoise.
Response: California gillnet fisheries that use a mesh size of 3.5
inches or less target white croaker, bonito, flying fish, herring,
smelt, shad sturgeon, bottomfish, mullet, perch, and rockfish. There
have been no observed or reported incidental takes of central
California harbor porpoise, or any marine mammal, in these fisheries.
In addition, no mention of central California harbor porpoise
mortalities or serious injuries in the small mesh gillnet fisheries
were made in the final SAR. Due to the small mesh size used in this
fishery, the likelihood of incidental marine mammal mortality and
serious injury is very low. For these reasons, this fishery is placed
in Category III.
Comment 53: Reclassify the CA herring, sardine, and squid purse
seine fisheries into Category II, because the interactions are similar
to those that occur in the CA anchovy, mackerel, and tuna purse seine
fishery.
Response: The CA anchovy, mackerel, and tuna purse seine fishery
has been classified as Category II, because mortality and serious
injury of the offshore bottlenose dolphin stock across all fisheries is
greater than 10 percent of this stock's PBR level, and the estimated
annual average mortality and serious injury of this stock in the CA
anchovy, mackerel, tuna purse seine fishery is 2 percent of this
stock's PBR level. At this time, there are no data indicating that the
herring, sardine, and squid purse seine fisheries have similar
incidental serious injury and mortality rates to the anchovy, mackerel,
and tuna purse seine fishery. For these reasons, the herring, sardine,
and squid purse seine fisheries are placed in Category III.
Comment 54: Hawaii (HI) lobster trap/crab trap fishery should be
considered to interact with humpback whales based on analogy with
interactions between trap fisheries and large cetaceans on the U.S.
Atlantic coast.
Response: There is no evidence to indicate that humpback whales
interact with this fishery in Hawaii. Because there is no evidence of
incidental mortality or serious injury of humpback whales, or other
marine mammals in this fishery, this fishery is placed in Category III.
Changes from the Proposed LOF
The following is a list of other changes that have not been
discussed in
[[Page 67076]]
the preamble or response to comments section, or that were made for
editorial consistency:
Marine mammal species list. According to statute, the LOF must
include a description of the marine mammal stocks that interact with
each commercial fishery. The proposed LOF included marine mammals that
are known, reported, or strongly suspected to be injured, killed,
entangled, or harassed in a particular commercial fishery. All marine
mammals listed as interacting with a particular commercial fishery in
the 1994 LOF were also included. In this final LOF, the list of marine
mammals specified as interacting with commercial fisheries is limited
to those that have had documented incidental injuries or mortalities in
commercial fisheries between 1989 and 1995. Information from observer
programs, logbook data, stranding reports, and anecdotal reports were
used to develop the species list. In addition, the names of the marine
mammal species/stock involved are listed instead of a code.
Alaskan Bering Sea and Aleutian Islands groundfish trawl fishery.
This fishery was proposed to move from Category III to Category II in
the proposed LOF based on the serious injury and mortality of killer
whales that is over 50 percent of the PBR. However, because the
population estimates of both the resident and transient stocks of
killer whales are known to be biased low, and because NMFS has good
estimates of the level of mortality and serious injury in this observed
fishery, this fishery will be placed in Category III.
AK southern Bering Sea, Aleutian Islands, and Western Gulf of
Alaska sablefish longline/set line (federally regulated waters). This
fishery was placed in Category II in the 1994 LOF and was proposed to
remain in Category II in the proposed LOF. The proposed classification
was based on an annual level of serious injury and mortality of both
the resident and transient stocks of killer whales that is greater than
10 percent of the PBR level for all fisheries, and greater than 1
percent of the PBR level for this fishery. However, because the
population estimates of both the resident and transient stocks of
killer whales are known to be biased low, this fishery is placed in
Category III.
Mid-Atlantic Menhaden Purse Seine. This fishery was erroneously
proposed to be placed in Category II in the proposed LOF, because
incidental takes of bottlenose dolphins that occurred in the Gulf of
Mexico menhaden purse seine were attributed to the Mid-Atlantic
menhaden purse seine. This error has been corrected, and the Mid-
Atlantic menhaden purse seine is placed in Category III in this final
LOF.
Gulf of Maine small pelagics surface gillnet. This fishery was
identified in Category I in the 1994 LOF, and was proposed to remain in
Category I in the proposed LOF, based on a lack of available
information that could be used to place the fishery in a different
category. Because only two reports of serious injury and mortality of
marine mammals incidental to this fishery have been reported, Category
I is not warranted. Thus, this fishery has been placed in Category II.
Occasional anecdotal reports of mortalities and injuries of marine
mammals incidental to this fishery have been reported. Because there
have been reports of mortalities in this fishery, it will be placed in
Category II.
Atlantic squid, mackerel, butterfish trawl. The name of this
fishery was the ``Atlantic mid-water trawl'' in the proposed LOF. In
the proposed LOF, this fishery was defined as including those mid-water
trawlers that target fish managed by the Atlantic Mackerel, Squid, and
Butterfish Fishery Management Plan (FMP). Because both mid- and bottom-
trawl gear are used to harvest squid, the name of this fishery has been
changed to reflect the target species in lieu of the technique. Thus,
this fishery is now called the ``Atlantic squid, mackerel, butterfish
trawl'' in the final LOF.
Atlantic Ocean, Gulf of Mexico large pelagics drift gillnet
fishery. The name of this fishery was the ``Atlantic Ocean, Caribbean,
Gulf of Mexico swordfish, tuna, shark drift gillnet'' in the proposed
LOF. The name of this fishery has been changed in the final LOF because
the species targeted in this fishery have changed in the past and may
change in the future.
U.S. Atlantic large pelagics pair trawl. The name of this fishery
was proposed as the ``Atlantic Ocean, Caribbean, Gulf of Mexico
Swordfish, Tuna, Shark Pair trawl'' in the proposed LOF. The name has
been changed in the final LOF to encompass all large pelagic species
targeted using this gear.
Atlantic Ocean, Caribbean, Gulf of Mexico large pelagics longline.
The name of this fishery was proposed as the ``Atlantic Ocean,
Caribbean, Gulf of Mexico tuna, shark, swordfish longline'' in the
proposed LOF. The name has been changed in the final LOF to encompass
all large pelagic species targeted using this gear.
To remain consistent throughout the United States, the Atlantic
Ocean, Gulf of Mexico, and Caribbean commercial passenger fishing
vessel fishery has been added to the LOF. This fishery is placed in
Category III, because there are no documented or suspected serious
injuries or mortalities of marine mammals incidental to this fishery.
Number of participants in commercial fisheries. The LOF tables
include estimates of the number of participants in each commercial
fishery. Comments were received updating the number of participants in
certain commercial fisheries, and these updates are reflected in Tables
1 and 2. The number of participants was updated for the following
fisheries: Gulf of Mexico menhaden purse seine, Florida west coast
purse seine, Southeast U.S. Atlantic, Gulf of Mexico snapper-grouper
and other reef fish bottom longline/hook&line, and the Southeast U.S.
Atlantic, Gulf of Mexico, Caribbean spiny lobster trap/pot.
All occurrences of ``South Atlantic'' in the fishery names in the
LOF have been changed to ``Southeast U.S. Atlantic'' to more
appropriately designate the geographic location of the commercial
fisheries as occurring in southern U.S. waters and not south of the
equator.
``Weakfish, mullet, spot, croaker'' were added to the list of
target species in the ``Gulf of Mexico inshore gillnet'' fishery to
better reflect the nature of the fishery.
The name of the Gulf of Maine, South Atlantic coastal shad,
sturgeon gillnet has been changed to ``Gulf of Maine, Southeast U.S.
Atlantic coastal shad, sturgeon gillnet fishery'' to better reflect the
geographical range of this fishery, and to specifically include the
waters of North Carolina.
The Gulf of Mexico, Southeast U.S. Atlantic coastal gillnet
(includes mullet gillnet fishery in Louisiana and Mississippi) fishery
has been separated into a Gulf of Mexico component and a Southeast U.S.
Atlantic coastal gillnet, because the marine mammal stocks with which
the fisheries interact are different.
The Florida mullet gillnet fishery has been removed from the LOF.
This fishery no longer operates due to the net ban in Florida state
waters. Some participants in this fishery have moved their operations
to Louisiana and Mississippi; thus, the phrase ``includes mullet
gillnet fishing in LA and MS'' has been added to the name of the
Southeast U.S. Atlantic, Gulf of Mexico coastal gillnet fishery.
[[Page 67077]]
Responses to Comments
Justification for the Categorization of Commercial Fisheries
The following are justifications for the final categorization of
commercial fisheries into Category I, II, or III based on the
classification scheme defined in the final rule implementing section
118 (60 FR 45086, August 30, 1995). Justifications are presented for
only those fisheries placed in Category I and II, or those fisheries
placed in Category III for which observer, logbook, stranding or other
information exist. The evaluation of each fishery at both the Tier 1
(total, species-specific marine mammal serious injuries and mortalities
across all fisheries) and the Tier 2 (fishery-specific incidental
marine mammal serious injury and mortality) levels is provided.
Commercial Fisheries in the Pacific Ocean
Category I
CA Angel Shark/Halibut and Other Species Using Large Mesh (>3.5 inches)
Set Gillnet Fishery
Tier 1 evaluation: Based on observer data and fishing effort during
1991-93 (Barlow et al., 1994, NMFS 1995), annual mortality and serious
injury of the central California harbor porpoise across all fisheries,
including the California angel shark/halibut large-mesh set gillnet
fishery, exceeds 10 percent of this stock's PBR level.
Tier 2 evaluation: The CA angel shark/halibut large-mesh set
gillnet fishery is responsible for an estimated annual removal level of
50 percent or more of the Central California harbor porpoise's PBR
level. CA/OR Thresher Shark/Swordfish Drift Gillnet Fishery
Tier 1 evaluation: Based on observer data and fishing effort during
1991-93 (Barlow et al., 1994, NMFS 1995), total annual mortality and
serious injury of sperm whales across all fisheries, including the CA/
OR drift gillnet fishery, exceeds 10 percent of this stock's PBR level.
Tier 2 evaluation: The CA/OR thresher shark/swordfish drift gillnet
fishery is responsible for an estimated annual removal level of 50
percent or more of the CA/OR/WA sperm whale stock's PBR level.
Category II
AK Prince William Sound Salmon Drift Gillnet
Tier 1 evaluation: Total known harbor porpoise mortality and
serious injury levels across all fisheries exceed 10 percent of the
stock's PBR level.
Tier 2 evaluation: Known harbor porpoise mortality and serious
injury in this fishery exceed 1 percent of the stock's PBR.
AK Peninsula/Aleutian Islands Salmon Drift Gillnet
Tier 1 evaluation: Total known harbor porpoise mortality and
serious injury levels across all fisheries exceed 10 percent of the
stock's PBR level.
Tier 2 evaluation: Known harbor porpoise mortality and serious
injury in this fishery exceed 1 percent of the stock's PBR level.
AK Peninsula/Aleutian Island Salmon Set Gillnet
Tier 1 evaluation: Total known marine mammal mortality and serious
injury levels across all fisheries does not exceed 10 percent of each
stock's PBR level based on the current information. Low levels of
observer coverage have been inadequate to determine mortality and
serious injury levels for these stocks across all fisheries, and
available data suggest that levels of mortality and serious injury may
exceed 10 percent of some stocks' PBR levels if observer information
were available, especially for harbor porpoise and Steller sea lions.
Tier 2 evaluation: Low levels of marine mammal mortalities and
serious injuries have been documented for this fishery. This fishery
has not been observed, and because levels of marine mammal mortalities
and serious injuries in this fishery are expected to be similar to
levels of other set gillnet fisheries that interact with similar marine
mammal species, especially for harbor porpoise, this fishery is placed
in Category II.
Southeast Alaska Salmon Drift Gillnet
Tier 1 evaluation: Total known harbor porpoise and humpback whale
mortality and serious injury levels across all fisheries exceed 10
percent of each stock's PBR level.
Tier 2 evaluation: Known harbor porpoise and humpback whale
mortality and serious injury levels in this fishery exceed 1 percent of
each stock's PBR level.
AK Cook Inlet Drift Gillnet
Tier 1 evaluation: Total known marine mammal mortality and serious
injury levels across all fisheries do not exceed 10 percent of the PBR
of each stock taken by this fishery with currently available
information. Low levels of observer coverage have been inadequate to
determine mortality and serious injury levels for these stocks across
all fisheries, and available data suggest that levels of mortality and
serious injury may exceed 10 percent of some stocks' PBRs if observer
information were available.
Tier 2 evaluation: Low levels of marine mammal mortalities and
serious injuries have been documented for this fishery. Low levels of
observer coverage have been inadequate to determine mortality and
serious injury levels for these stocks, and available data suggest that
levels of mortality and serious injury may exceed 1 percent of some
stocks' PBR levels if observer information were available. Levels of
marine mammal mortalities and serious injuries in this fishery are
expected to be similar to levels of other drift gillnet fisheries that
interact with similar marine mammal species.
AK Cook Inlet Salmon Set Gillnet
Tier 1 evaluation: Total known marine mammal mortality and serious
injury levels across all fisheries do not exceed 10 percent of each
stock's PBR level with the current information. Low levels of observer
coverage have been inadequate to determine mortality and serious injury
levels for these stocks across all fisheries, and available data
suggest that levels of mortality and serious injury may exceed 10
percent of some stocks' PBR levels if observer information were
available, especially for harbor porpoise.
Tier 2 evaluation: Low levels of marine mammal mortalities and
serious injuries have been documented for this fishery. Low levels of
observer coverage have been inadequate to determine mortality and
serious injury levels for these stocks, and available data suggest that
levels of mortality and serious injury may exceed 1 percent of some
stocks' PBR levels if observer information were available. Levels of
marine mammal mortalities and serious injuries in this fishery are
expected to be similar to levels of other set gillnet fisheries that
interact with similar marine mammal species, especially for harbor
porpoise.
AK Yakutat Salmon Set Gillnet
Tier 1 evaluation: Total known harbor seal mortality and serious
injury levels across all fisheries do not exceed 10 percent of the
stock's PBR level with the current information. Low levels of observer
coverage have been inadequate to determine mortality and serious injury
levels for these stocks across all fisheries, and available data
suggest that levels of mortality and serious injury may exceed 10
percent of some stocks' PBR levels if observer information were
available.
Tier 2 evaluation: Known harbor seal mortality and serious injury
levels
[[Page 67078]]
exceed 1 percent of the stock's PBR level.
AK Kodiak Salmon Set Gillnet
Tier 1 evaluation: Total known harbor porpoise mortality and
serious injury levels across all fisheries exceed 10 percent of the
stock's PBR level.
Tier 2 evaluation: Known harbor porpoise mortality and serious
injury levels in this fishery exceed 1 percent of the stock's PBR
level.
AK Bristol Bay Drift Gillnet
Tier 1 evaluation: Total known harbor seal and beluga whale
mortality and serious injury levels across all fisheries do not exceed
10 percent of each stock's PBR level with the current information. Low
levels of observer coverage have been inadequate to determine mortality
and serious injury levels for these stocks across all fisheries, and
available data suggest that levels of mortality and serious injury may
exceed 10 percent of some stocks' PBR levels if observer information
were available.
Tier 2 evaluation: Known harbor seal and beluga whale mortality and
serious injury levels exceed 1 percent of each stock's PBR level.
AK Bristol Bay Set Gillnet
Tier 1 evaluation: Total known marine mammal mortality and serious
injury levels across all fisheries do not exceed 10 percent of each
stock's PBR level with the current information. Low levels of observer
coverage have been inadequate to determine mortality and serious injury
levels for these stocks across all fisheries, and available data
suggest that levels of mortality and serious injury may exceed 10
percent of some stocks' PBR levels if observer information were
available, especially for harbor porpoise, harbor seals and Steller sea
lions.
Tier 2 evaluation: Low levels of marine mammal mortalities and
serious injuries have been documented for this fishery. Low levels of
observer coverage have been inadequate to determine mortality and
serious injury levels for these stocks, and available data suggest that
levels of mortality and serious injury may exceed 1 percent of some
stocks' PBR levels if observer information were available. Levels of
marine mammal mortalities and serious injuries in this fishery are
expected to be similar to levels of other set gillnet fisheries that
interact with similar marine mammal species, especially for harbor
porpoise, harbor seals and Steller sea lions.
AK Metlakatla/Annette Island Salmon Drift Gillnet
This fishery is separated from the Southeast drift gillnet fishery
only for purposes of registration. It is a tribal fishery and is thus
exempt from the registration fee. For categorization purposes, it is
considered the same as the Southeast drift gillnet fishery.
WA Puget Sound Region Salmon Drift Gillnet (Includes All Inland Waters
South of the US-Canada Border and Eastward of the Bonilla-Tatoosh
Line--Treaty Indian Fishing is Excluded)
Tier 1 evaluation: As reported in the final SAR, the estimated
total fishery-related mortality for the inland Washington stock of
harbor porpoise (16), exceeds 10 percent of the calculated PBR level
(2.7) and, therefore, can not be considered insignificant.
Tier 2 evaluation: The reported incidental take estimate of 15
harbor porpoise per year was calculated from observed take in the
sockeye salmon fishery. However, that estimate includes Treaty Indian
fishing effort, which constitutes about one half of the effort in Puget
Sound. Therefore, the estimated take of harbor porpoise for the non-
tribal salmon drift gillnet fishery would be about one half of the
total estimated take (7.5), which is greater than 1 percent but less
than 50 percent of the calculated PBR level for this stock.
CA Anchovy, Mackerel, Tuna Purse Seine
Tier 1 evaluation: Based on observer data and fishing effort during
1991-93 and logbook data (1990-92) (Barlow et al., 1995, NMFS 1995),
the average annual mortality and serious injury of the offshore
bottlenose dolphin across all fisheries, including the CA anchovy,
mackerel, tuna purse seine fishery, exceeds 10 percent of this stock's
PBR levels.
Tier 2 evaluation: The mortality and serious injury of the offshore
bottlenose dolphin in the CA mackerel, anchovy, tuna purse seine
fishery is two percent of this stock's PBR level.
AK Southeast Salmon Purse Seine
Tier 1 evaluation: Total known humpback whale mortalities and
serious injuries across all fisheries exceed 10 percent of the stock's
PBR level.
Tier 2 evaluation: Known humpback whale mortalities and serious
injuries in this fishery exceed 1 percent of the stock's PBR level.
AK pair trawl
This is a new fishery in Alaskan waters and is therefore
categorized by analogy with pair trawl fisheries in the U.S. North
Atlantic. The U.S. North Atlantic large pelagics pair trawl fishery has
demonstrated high levels of mortalities and serious injury for some
marine mammal species. The Alaska pair trawl fishery is classified as
Category II pending additional information on the level of marine
mammal serious injuries and mortalities in the fishery.
OR Swordfish/Blue Shark Surface Longline
Categorization of this fishery is based on analogy with observed
pelagic longline fisheries in the Atlantic Ocean. Based on observer
data, the Atlantic Ocean pelagic longline fishery for swordfish and
tuna has at least an occasional incidental serious injury and mortality
of marine mammals. Accordingly, this fishery is placed in Category II.
Category III
AK Prince William Sound Set Gillnet
Tier 1 evaluation: Total known harbor seal and Steller sea lion
mortality and serious injury levels across all fisheries do not exceed
10 percent of each stock's PBR level with the current information. Low
levels of observer coverage have been inadequate to determine mortality
and serious injury levels for these stocks across all fisheries, and
available data suggest that levels of mortality and serious injury may
exceed 10 percent of these stocks' PBR levels if observer information
were available.
Tier 2 evaluation: Marine mammal mortality and serious injury
levels approaching 1 percent are not expected for any stock by this
fishery.
AK Kuskokwim, Yukon, Norton Sound, Kotzebue Salmon Gillnet
Interactions in these fisheries usually result in directed takes of
marine mammals for subsistence purposes.
AK Roe Herring and Food/Bait Herring Gillnet
Tier 1 evaluation: No marine mammal serious injuries or mortalities
have been documented incidental to this fishery.
Tier 2 evaluation: Although marine mammal mortalities and serious
injuries have been documented for other gillnet fisheries, the roe
herring gillnet fishery openers are of such short duration, marine
mammal mortality and serious injury levels approaching 1 percent are
not expected for any stock for this fishery.
[[Page 67079]]
WA Willapa Bay Drift Gillnet
Tier 1 evaluation: The estimated total fishery related mortality
and serious injury for the Oregon and Washington coastal stock of
harbor seals is greater than 10 percent of the PBR level.
Tier 2 evaluation: No harbor seal mortalities were observed
incidental to fishing effort in 1991. However, harbor seals did
interact with the fishery. Two incidents of entanglement were observed
in which the seals were released alive and uninjured. Based on observer
data, incidental mortality was estimated to be a rare event which would
not exceed 1 percent of the calculated PBR level for this stock.
WA Gray's Harbor Salmon Drift Gillnet (Excluding Treaty Tribal Fishing)
Tier 1 evaluation: As reported in the final SAR, the estimated
total fishery related mortality and serious injury for the Oregon &
Washington coastal stock of harbor seals (233) is greater than 10
percent of the PBR level (170).
Tier 2 evaluation: The reported estimate of annual mortality and
serious injury of harbor seals in this fishery (10), based on observer
data, is less than 1 percent of the calculated PBR level for the stock
(17).
WA, OR Lower Columbia River (Includes Tributaries) Drift Gillnet
Tier 1 evaluation: The estimated total fishery related mortality
and serious injury for the Oregon and Washington coastal stock of
harbor seals (233) is not less than 10 percent of the PBR level (170).
Tier 2 evaluation: Based on observations in 1991-92, the estimated
annual mortality and serious injury of harbor seals in this fishery is
213. However, during the observation period, all but one of the
observed mortalities occurred during the winter season. The
extrapolated annual mortality of harbor seals in this fishery from 1991
to 1993 was 233 seals in 1991 (all during the winter season), 192 seals
in 1992 (180 in the winter season and 12 in the fall), and 11 seals in
1993 (all during the winter season). Although the estimated annual
mortalities of harbor seals in 1991 and 1992 could justify placing this
fishery in Category II, reduced fishing seasons and or season closures
(due to restrictions on the fishery to minimize impacts on Snake River
chinook salmon, which are listed under the Endangered Species Act
(ESA)) are unlikely to result in the levels of harbor seal mortality
observed in 1991 and 1992. The winter season of 1993, when an estimated
11 harbor seals were taken, was restricted due to ESA considerations.
The winter season was closed in 1994. The estimated annual harbor seal
mortality for the fall fishery, 4 (0+11+0/3=3.66) is less than 1
percent of the calculated PBR level for this stock (17).
CA Set and Drift Gillnet Fisheries That Use a Stretched Mesh Size of
3.5 Inches or Less
Tier 1 evaluation: Based on logbook data (1991-1994) (NMFS 1995,
Joe Cordaro, pers. com., SWO, NMFS), no annual mortality and serious
injury of marine mammals has been reported in the CA set and drift
gillnet fishery with small mesh.
AK Miscellaneous Finfish Set Gillnet
Tier 1 evaluation: No marine mammal serious injuries or mortalities
have been documented incidental to this fishery.
Tier 2 evaluation: Marine mammal mortality and serious injury
levels approaching 1 percent are not expected for any stock by this
fishery.
HI Gillnet
Tier 1 evaluation: One bottlenose dolphin was reported entangled in
a gill net in 1991 (Nitta and Henderson 1993); however, bottlenose
dolphins are rarely reported as entangled in set gillnets in Hawaii.
There are records of spinner dolphins being taken in nets or net
fragments in Hawaiian waters, and one eyewitness account in 1990. There
has been one reported incidental mortality of a Hawaiian monk seal in
an inshore gillnet in 1976 (Barlow et al., 1995). Due to the rarity of
these interactions, this fishery is placed in Category III.
CA Herring Purse Seine
Tier 1 evaluation: Based on logbook data (1990-94) (Joe Cordaro,
pers. comm.) the total mortality and serious injury of the CA coastal
bottlenose dolphins across all fisheries, including the CA herring
purse seine fishery, is less than 10 percent of this stock's PBR level
(Barlow et al., 1995).
CA Sardine Purse Seine
Tier 1 evaluation: Based on logbook data (1990-1992), no mortality
or serious injury has been reported in this fishery.
CA Squid Purse Seine
Tier 1 evaluation: Based on logbook data (1990-92), the total
annual average mortality and serious injury of California sea lions
across all fisheries, including the squid purse seine fishery, exceeds
10 percent of this stock's PBR level.
Tier 2 evaluation: The total annual average mortality and serious
injury of California sea lions in the CA squid purse seine fishery is
less than one percent of this stock's PBR level.
CA Squid Dip Net
Tier 1 evaluation: Based on logbook data (1990-1992), no mortality
or serious injury has been reported in the CA squid dip net fishery.
WA, OR Salmon Net Pens
Tier 1 evaluation: As reported in the final SAR, the total
estimated fishery related mortality and serious injury of the U.S.
stock of California sea lions (2,446) based on observer data collected
from 1991 to 1993 exceeds 10 percent of the calculated PBR level for
this stock (505). However, preliminary estimates for the first three
quarters of 1994 indicate that a large reduction in the mortality rate
has taken place and that mortality may be less than 10 percent of the
calculated PBR for 1994.
Tier 2 evaluation: Based on logbook data the incidental take of
marine mammals is infrequent and California sea lion mortality and
serious injuries are at a level less than 1 percent of the calculated
PBR level.
OR Salmon Ranch
Tier 1 evaluation: No incidental, but not intentional, mortalities
or serious injuries of marine mammals have been reported for this
fishery.
AK Salmon Troll
Tier 1 evaluation: Total known Steller sea lion mortalities and
serious injuries across all fisheries do not exceed 10 percent of the
stock's PBR level with the current information. Low levels of observer
coverage have been inadequate to determine mortality and serious injury
levels for these stocks across all fisheries, and available data
suggest that levels of mortality and serious injury may exceed 10
percent of some stocks' PBR levels if observer information were
available.
Tier 2 evaluation: Known Steller sea lion mortalities and serous
injuries for this fishery do not exceed 1 percent of the stock's PBR
level and current information does not indicate that this level would
exceed 1 percent with observer coverage for this fishery.
CA/OR/WA Salmon Troll
Tier 1 evaluation: Based on logbook data (1990-92), the mortality
and serious injury of California sea lions across all fisheries,
including the CA/OR/WA salmon troll fishery, exceeds 10 percent of this
stock's PBR level.
Tier 2 evaluation: A review of logbook data (1990-1992) indicated
that the majority of fishers reported intentional
[[Page 67080]]
lethal takes for deterrence in both the deterrence columns and the gear
columns, owing to ambiguities in the reporting instructions. However,
based on an earlier study (Miller et al., 1983) it is known that
incidental mortalities in this fishery are the result of intentional
deterrence efforts which are now illegal. Once the duplicate reports
are removed, the annual average mortality and serious injury of
California sea lions is below one percent.
AK State Waters Sablefish Longline/Set Line
Tier 1 evaluation: No marine mammal serious injuries or mortalities
have been documented incidental to this fishery.
HI Swordfish, Tuna, Billfish, Mahi Mahi, Wahoo, Oceanic Sharks
Longline/Set Line
Tier 1 evaluation: Evidence of interactions between the Hawaii
pelagic longline fishery and Hawaiian monk seals began to accumulate in
1990, including 5 hooked seals and 13 unusual seal wounds that some
believe were the result of interactions with the longline gear (Barlow
et al. 1995). In October 1991, a permanent protected species zone was
established around the Northwest Hawaiian Islands, which precludes
longline fishing. One Risso's dolphin was observed ``hooked'' and was
released alive in 1993 (pers. comm., Gene Nitta, Southwest Region,
NMFS). Preliminary analysis of observer data from the swordfish
longline fishery indicates that two Risso's dolphins were incidentally
taken during 85 observed longline trips between February 1994 and
October 1995 (NMFS unpublished data). One animal had ingested a hook
and another appeared to be hooked in the caudal peduncle region. Both
animals were released alive and swam away. Also, one bottlenose dolphin
had ingested a hook and was also released alive. In 1994, a pygmy
killer whale was hooked and released from longline gear. Furthermore,
in 1991, a humpback whale was observed entangled in longline gear in
Hawaii. Although the estimated PBR level for the central North Pacific
humpback whale is 2.8 animals, no estimates of annual average humpback
whale mortality and serious injury in the Hawaii longline fishery are
available at this time. Thus, it is not possible to compare annual
mortality and serious injury of humpback whales with its estimated PBR
level. Estimates of PBR levels and annual mortality and serious injury
for the other marine mammal species that have been documented
interacting with the Hawaiian longline fishery are currently not
available. For these reasons, this fishery is placed in Category III.
AK Southern Bering Sea, Aleutian Islands, and Western Gulf of Alaska
Sablefish Longline/Set Line (Federally Regulated Waters)
Tier 1 evaluation: Total known mortalities or serious injuries of
killer whales across all fisheries exceed 10 percent of the PBR level
for transient, resident and transient and resident stocks together.
Tier 2 evaluation: Known killer whale mortalities or serious
injuries in this fishery exceed 1 percent of the PBR level for
transient, resident and transient and resident stocks together.
The majority of the serious injuries and mortalities of killer
whales incidental to commercial fisheries occurred in the BSAI
groundfish trawl. Because this trawl fishery has a high level of
observer coverage, good mortality estimates for killer whales are
available from this fishery. However, because the population estimates
for killer whales are known to be underestimated and the low level of
serious injury and mortality that occurs incidental to the trawl and
longline fisheries are not likely to have a significant effect on the
population, and because neither fishery has significant interactions
with other species of marine mammals both fisheries are placed in
Category III.
AK Gulf of Alaska Groundfish Trawl
Tier 1 evaluation: Total known Steller sea lion, harbor seal,
northern elephant seal and Dall's porpoise mortalities or serious
injuries across all fisheries do not exceed 10 percent of each stock's
PBR level with the current information. Low levels of observer coverage
have been inadequate to determine mortality and serious injury levels
for these stocks across all fisheries, and available data suggest that
levels of mortality and serious injury would exceed 10 percent of some
stocks' PBR levels if observer information were available.
Tier 2 evaluation: Marine mammal mortalities and serious injuries
levels approaching 1 percent are not expected for any stock by this
fishery.
AK BSAI Groundfish Trawl
Tier 1 evaluation: Total known mortalities or serious injuries of
killer whales across all fisheries exceed 10 percent of the PBR level
for transient, resident, and transient and resident stocks combined.
Tier 2 evaluation: Known killer whale mortalities or serious
injuries in this fishery exceed 1 percent of the PBR level for
transient, resident and transient and resident stocks combined.
Killer whales are seriously injured and killed incidental to two
fisheries: The AK southern BSAI, and Western Gulf of Alaska sablefish
longline/set line (federally regulated waters) fishery and the AK BSAI
groundfish trawl fishery. However, the majority of the serious injuries
and mortalities of killer whales incidental to commercial fisheries
occurred in the BSAI groundfish trawl. Because this trawl fishery has a
high level of observer coverage, good mortality estimates for killer
whales are available from this fishery. However, because the population
estimates for killer whales are known to be underestimated, and the low
level of serious injury and mortality that occurs incidental to the
trawl and longline fisheries are not likely to have a significant
effect on the population, both fisheries are placed in Category III.
AK Bering Sea, Gulf of Alaska (GOA) Finfish Pot
Tier 1 evaluation: Total known harbor seal mortalities or serious
injuries across all fisheries do not exceed 10 percent of each stock's
PBR level with the current information. Low levels of observer coverage
have been inadequate to determine mortality and serious injury levels
for these stocks across all fisheries, and available data suggest that
levels of mortality and serious injury may exceed 10 percent of some
stocks' PBR levels if observer information were available.
Tier 2 evaluation: Marine mammal mortalities and serious injuries
levels approaching 1 percent are not expected for any stock by this
fishery.
CA Lobster, Prawn, Shrimp, Rock Crab, Fish Pot
Tier 1 evaluation. Although the California Marine Mammal Stranding
Network, NMFS, receives reports of gray whales entangled in lobster pot
gear, these entanglements, while technically ``injuries'', do not
appear to result in mortalities. No other reports of marine mammal
incidental takes have been reported from these fisheries. For these
reasons, this fishery is placed in Category III.
Commercial Fisheries in the Atlantic Ocean, Caribbean, and Gulf of
Mexico
Category I
Atlantic Ocean, Caribbean, Gulf of Mexico Large Pelagics Pair Trawl
Tier 1 evaluation: Annual incidental mortality and serious injury
across all fisheries for all stocks known to interact
[[Page 67081]]
with this fishery is greater than 10 percent of the PBR level.
Tier 2 evaluation: Extrapolation of observer data results in an
estimated total incidental serious injury and mortality of 79 offshore
bottlenose dolphins and 33 common dolphins per year from 1992-93. These
take levels represent an annual incidental mortality and serious injury
that is greater than 50 percent of the PBR levels for both species.
Atlantic Ocean, Caribbean, Gulf of Mexico Large Pelagics Drift Gillnet
Fishery
Tier 1 evaluation: Incidental annual mortality and serious injury
across all fisheries for all stocks (with known PBR levels) interacting
with this fishery is greater than 10 percent of the PBR level.
Tier 2 evaluation: Extrapolation of observer data results in an
annual estimated total serious injuries and mortalities of 59 Risso's
dolphins, 424 common dolphins, 61 pilot whales, and 53 offshore
bottlenose dolphins per year from 1989-1993. These serious injury and
mortality levels represent an annual incidental mortality and serious
injury that is greater than 50 percent of the PBR levels for these
species.
The serious injury of a right whale in 1993 was reported by the
observer program. It was not an observed mortality; therefore it was
not reported as an ``observed kill.'' NMFS believes, however, that this
whale probably died from injuries sustained in this incident. One
serious injury or mortality of a right whale is greater than 50 percent
of the PBR level for this species. Therefore, this fishery would also
fall into Category I based on interactions with right whales. New
England multispecies sink gillnet (including species as defined in the
Multispecies Fisheries Management Plan and spiny dogfish and monkfish)
Tier 1 evaluation: Incidental annual mortality and serious injury
across all fisheries for all stocks interacting with this fishery--with
the exception of grey seals--is greater than 10 percent of the PBR
level.
Tier 2 evaluation: Extrapolation of observer data results in an
estimated total serious injury and mortality of 102 Atlantic white-
sided dolphins and 1,875 harbor porpoise per year from 1990-93. These
serious injury and mortality levels represent an annual incidental
mortality and serious injury that is greater than 50 percent of the PBR
levels for these species.
Atlantic Ocean, Caribbean, Gulf of Mexico Large Pelagics Longline
Fishery
This fishery was listed as Category II in the previous LOF and is
moved to Category I in this LOF and re-named ``Atlantic Ocean,
Caribbean, Gulf of Mexico Large Pelagics Longline.''
Tier 1 evaluation: Incidental annual mortality and serious injury
across all fisheries for pilot whale stock(s) interacting with this
fishery is greater than 10 percent of the PBR level.
Tier 2 evaluation: Extrapolation of observer data results in an
estimated total incidental mortality and serious injury of 26 pilot
whales per year from 1992-93. This represents an annual incidental
mortality and serious injury that is greater than 50 percent of the PBR
level for either long-finned or short-finned pilot whales. Therefore,
this fishery is moved from Category II to Category I.
This reclassification is supported by MMEP logbook data, which
includes reports of injury or mortality of an average of nine pilot
whales (stock unspecified) per year for the years 1990 to 1992. NMFS
has also received sighting reports (both at sea and stranded) of whales
carrying gear that may be attributable to the pelagic longline fishery.
Category II
U.S. Mid-Atlantic Coastal Gillnet Fishery
Tier 1 evaluation: Incidental mortality and serious injury across
all fisheries for harbor porpoise, coastal bottlenose dolphins, and
humpback whales, which are known to interact with this fishery, is
greater than 10 percent of the PBR levels for these stocks. Therefore
this fishery is subject to Tier 2 analysis.
Tier 2 evaluation: Little observer coverage occurred in this
fishery between 1989 and 1993. No serious injuries and mortalities were
observed during those years. Therefore, no annual incidental mortality
and serious injury from this fishery can be reported from observer data
for these years. Based on observer coverage in 1994, entanglements of
humpback whales and dolphins observed by NMFS and the public (not the
observer program) and evidence of gillnet entanglement observed in
stranded harbor porpoise, bottlenose dolphins, and humpback whales,
NMFS believes that annual serious injury and mortality for these
species due to this fishery is greater than 1 percent but less than 50
percent of the PBR levels for these stocks. Therefore this fishery is
placed in Category II. For clarification of how the stranding data were
used in this analysis, see the proposed LOF (60 FR 31680, June 16,
1995).
Gulf of Maine Small Pelagics Surface Gillnet
Occasional anecdotal reports of mortalities and injuries of marine
mammals incidental to this fishery have been reported. Because there
have been reports of mortalities in this fishery, it is placed in
Category II.
Southeast U.S. Atlantic Shark Gillnet Fishery
Tier 1 evaluation: Incidental annual mortality and serious injury
across all fisheries for the western North Atlantic coastal bottlenose
dolphin stock interacting with this fishery are greater than 10 percent
of the PBR level.
Tier 2 evaluation: Observer data for this fishery indicate that
mortality to the western North Atlantic coastal bottlenose dolphin
stock due to this fishery is 4 percent; thus, the fishery belongs in
Category II.
In addition, a young right whale calf was observed off the northern
coast of Florida, which had wounds indicative of interaction with
gillnet gear in February 1994. The animal also exhibited propeller
wounds believed by researchers investigating the incident to have been
inflicted by the fishery vessel responsible for the net wounds. It was
concluded that the shark gillnet fishery was the only large mesh
gillnet fishery operating in that area at the time. The animal has not
been sighted since, and is presumed to be dead. Another suspected
interaction between this fishery and a right whale cow was also
reported in this same year, although it is believed that this
particular interaction was not fatal.
Atlantic Squid, Mackerel, Butterfish Trawl
This fishery was proposed to combine ``Mid-Atlantic Squid Trawl''
and ``Mid-Atlantic Mackerel Trawl'' from the 1994 LOF. The proposed LOF
called this fishery the ``Atlantic mid-water trawl.'' In the final LOF,
the fishery is renamed ``Atlantic Squid, Mackerel, Butterfish Trawl''
with no reference to whether fishermen are using bottom or mid-water
gear.
Tier 1 evaluation: Based on MMEP logbook reports from the squid and
mackerel trawl fisheries, incidental annual mortality and serious
injury across all fisheries for all stocks reported to interact with
this fishery are greater than 10 percent of the PBR level.
Tier 2 evaluation: MMEP logbook data averaged over 1990-92 result
in reported serious injuries and mortalities of five pilot whales per
year. This represents a minimum serious injury and mortality level of
greater than 1
[[Page 67082]]
percent but less than 50 percent of the PBR level for either long-
finned or short-finned pilot whales. Therefore, this fishery is placed
in Category II.
North Carolina Haul Seine
Representatives of the North Carolina marine mammal stranding
network have noted interactions between this gear and western North
Atlantic coastal bottlenose dolphins. Three dolphins were observed as
they were released live from this gear; on another occasion, one
dolphin was recovered dead from an interaction with a haul seine. These
observations support the decision to place this new fishery in Category
II until NMFS has more data with which to support this or another
classification.
North Carolina Roe Mullet Stop Net
Tier 1 evaluation: Incidental annual mortality and serious injury
across all fisheries for the coastal bottlenose dolphin stock
interacting with this fishery is greater than 10 percent of PBR.
Tier 2 evaluation: Evidence of mortality due to stop net
entanglement observed in stranded western North Atlantic coastal
bottlenose dolphins indicate that annual serious injury and mortality
related to this fishery for this stock is greater than 1 percent but
less than 50 percent of PBR. Therefore, this fishery is placed in
Category II.
Category III
Rhode Island, Southern Massachusetts (to Monomoy Island), and New York
Bight (Raritan and Lower New York Bays) Inshore Gillnet
At this time there is no information available to suggest that
serious injury and mortality of marine mammals occur incidental to this
fishery. Based on patterns of marine mammal distribution, likelihood of
encounters with cetaceans is low, but encounters with seals may occur.
This fishery was separated from other Mid-Atlantic gillnet fisheries to
account for differences in cetacean distribution. A closer examination
of more recent stranding and entanglement records may provide
information to support re-classification of this fishery in the future.
Long Island Sound Inshore Gillnet
At this time there is no available information to suggest that
serious injury and mortality of marine mammals occur incidental to this
fishery. Based on patterns of marine mammal distribution, likelihood of
encounters with cetaceans is low, but encounters with seals may occur.
This fishery was separated from other Mid-Atlantic gillnet fisheries to
account for differences in cetacean distribution. A closer examination
of more recent stranding and entanglement records may provide
information to support re-classification of this fishery in the future.
Delaware Bay Inshore Gillnet
At this time, there is no available information to suggest that
serious injury and mortality of marine mammals occur incidental to this
fishery. Based on patterns of marine mammal distribution, likelihood of
encounters is low. This fishery was separated from other Mid-Atlantic
gillnet fisheries to account for differences in marine mammal
distribution. A closer examination of more recent stranding and
entanglement records may provide information to support re-
classification of this fishery in the future.
Chesapeake Bay Inshore Gillnet
This fishery was listed as a Category III in the previous LOF and
remains in Category III in this LOF. This listing was inadvertently
omitted from the proposed LOF.
At this time, there is no available information to suggest that
serious injury and mortality of marine mammals occur incidental to this
fishery. Based on patterns of marine mammal distribution, likelihood of
encounters is low. This fishery was separated from other Mid-Atlantic
gillnet fisheries to account for differences in marine mammal
distribution. A closer examination of more recent stranding and
entanglement records may provide information to support re-
classification of this fishery in the future.
North Carolina Inshore Gillnet
No marine mammal serious injuries or mortalities have been
documented incidental to this fishery. All marine mammal strandings
exhibiting evidence of gillnet fishery interactions recovered by the
North Carolina marine mammal stranding network since at least 1992 have
been from offshore locations. However, as marine mammals stranded in
the marshes are difficult to detect, stranding data will reflect this
bias. NMFS agrees that there is potential for interaction and will
continue to collect stranding and other information on this fishery.
Gulf of Mexico Inshore Gillnet (black drum, sheepshead, weakfish,
mullet, spot, croaker)
Inshore gillnet fisheries in the Gulf of Mexico have been
classified by analogy with similar inshore fisheries in the mid-
Atlantic. The PBR levels for stocks of bottlenose dolphins in the Gulf
of Mexico bays, sounds, and estuaries are low, because dolphin numbers
and densities in many of these areas are low. These low densities also
decrease the likelihood of a fishery interacting with dolphins in these
areas. Net bans and restrictions in states such as Texas, Florida, and
Louisiana, further decrease chances of gillnet fisheries interactions
with marine mammals in inshore waters of Gulf states. However,
researchers have noted that dolphin densities in some Gulf bays/sounds
may be higher than that commonly observed in similar Atlantic bays.
Also, detection of stranded animals is much less likely along marshy
coastlines than on coastal beaches; thus, stranding data will reflect
this bias. NMFS agrees that there is potential for interaction between
marine mammals and this fishery.
Offshore Monkfish Bottom Gillnet
This is a new fishery to the LOF and may have been listed
incorrectly as Category III in the proposed LOF. Because this fishery
may have a high potential to take many cetacean species based on
analogy with other shelf-edge fisheries, such as the large pelagic
drift net fishery, NMFS will examine available data during the
development of the next proposed LOF for possible re-classification of
this fishery as Category II.
Southeastern U.S. Atlantic, Gulf of Mexico Coastal Gillnet
Although coastal gillnet fisheries have been banned in Florida
State waters, and only shark and shad/sturgeon may be fished using
gillnet in South Carolina and Georgia State waters, the ``Southeastern
U.S. Atlantic'' component of this fishery will be retained in this
final LOF. If there are no participants in this component of the
coastal gillnet fishery when the next proposed LOF is developed, NMFS
will consider proposing to remove this fishery from the LOF. Any
strandings that can be determined to have occurred incidental to
gillnet operations in Florida, Georgia, or South Carolina, would have
to be attributed to the other gillnet operations that occur in these
areas (i.e., shark gillnet or shad/sturgeon gillnet fisheries).
Stranding data from the Gulf of Mexico indicate that gillnet
interactions with coastal stocks of bottlenose dolphins may warrant
classification of this fishery in Category II. This may be examined
during preparation of a future proposed LOF.
Florida Mullet Gillnet
This fishery has been removed from LOF due to the Florida net ban.
Some
[[Page 67083]]
fishers that previously fished in Florida waters may be working in
Louisiana waters; what remains of this fishery is combined with the
other Gulf of Mexico gillnet fisheries.
North Atlantic Bottom Trawl
Tier 1 evaluation: Incidental annual mortality and serious injury
across all fisheries for all marine mammal stocks interacting with this
fishery is greater than 10 percent of the PBR levels.
Tier 2 evaluation: Annual incidental mortality and serious injury
from this fishery reported by the observer program (averaged over 1989-
93) is greater than 50 percent of the PBR level for striped dolphins,
coastal bottlenose dolphins, and pilot whales. Therefore, this fishery
would have been placed in Category I. However, because the observer
coverage in this fishery is low, the estimated serious injury and
mortality levels are statistically weak. Thus, NMFS believes this
fishery should remain in Category III at this time. The proposed LOF
included further justification for this decision (60 FR 31680-31681,
June 16, 1995). NMFS anticipates having additional information from
other observer programs that may result in a reclassification of this
fishery in a future proposed LOF.
Mid-Atlantic, U.S. South Atlantic, Gulf of Mexico Shrimp Trawl
Tier 1 evaluation: Incidental annual mortality and serious injury
across all fisheries for all marine mammal stocks interacting with this
fishery is less than 10 percent of the PBR level.
Over 10,000 hours of observer effort in this fishery have been
logged in the Atlantic, and over 17,000 have been logged in the Gulf.
No takes of any marine mammal species have been observed. However, a
Category III report submitted from a shrimp trawl fisher off Key West
indicated a dolphin mortality occurred due to entanglement with the
lazy line. This incident took place offshore, on the Gulf side of Key
West, and thus likely involved the eastern coastal Gulf of Mexico stock
of bottlenose dolphins.
Gulf of Maine Menhaden Purse Seine
This fishery was grouped with the Mid-Atlantic menhaden purse seine
fishery in the proposed LOF. In this final LOF, the fishery is divided
into ``Gulf of Maine menhaden purse seine'' and ``Mid-Atlantic menhaden
purse seine'' because serious injuries and mortalities of bottlenose
dolphins in the Gulf of Maine portion of this fishery are unlikely.
The Gulf of Maine menhaden purse seine fishery is placed in
Category III based on a low probability of marine mammal encounters
resulting in serious injury or mortality. This fishery may interact
with harbor seals, minke whales, and humpback whales. However, NMFS
believes that these interactions would not represent a serious injury
or mortality level above 1 percent of PBR levels for these species and
that the Gulf of Maine menhaden purse seine fishery is appropriately
placed in Category III.
Mid-Atlantic Menhaden Purse Seine
This fishery was grouped with the Gulf of Maine menhaden purse
seine fishery in the proposed LOF. In this final LOF, the fishery is
divided into ``Gulf of Maine menhaden purse seine,'' and ``Mid-Atlantic
menhaden purse seine'' because serious injuries and mortalities of
bottlenose dolphins in the Gulf of Maine portion of this fishery are
unlikely.
This fishery was erroneously proposed to be placed in Category II
in the proposed LOF, because incidental takes of bottlenose dolphins
that occurred in the Gulf of Mexico menhaden purse seine were
attributed to the Mid-Atlantic menhaden purse seine. This error has
been corrected, and the Mid-Atlantic menhaden purse seine is placed in
Category III in this final LOF.
Gulf of Mexico Menhaden Purse Seine
Information on bycatch studies in this fishery, recently made
available to the NMFS Southeast Region, indicate that mortalities of
bottlenose dolphin of the northern Gulf of Mexico coastal stock have
been observed in this fishery (two observed mortalities in 1992, two
caught live and released in 1994, and one mortality to date in 1995).
Additionally, category III reports indicate that three dolphins were
taken in 1993. Complete effort data for the bycatch study is not yet
available; however, the available information indicates that
reclassification of this fishery may be proposed in a future LOF. NMFS
will continue to investigate available information as well as monitor
future results of the bycatch study to determine whether
reclassification is justified for this fishery.
Gulf of Maine, U.S. Mid-Atlantic Mixed Species Trap/Pot
U.S. Mid-Atlantic Black Sea Bass Trap/Pot
Gulf of Maine, U.S. Mid-Atlantic Inshore Lobster Pot
Gulf of Maine, U.S. Mid-Atlantic Offshore Lobster Trap/Pot
Atlantic Ocean, Gulf of Mexico Blue Crab Trap/Pot
U.S. South Atlantic, Gulf of Mexico, Caribbean Spiny Lobster Trap/Pot
Entanglements of cetacean stocks in pot and/or trap fisheries have
been well documented. The degree to which marine mammals become
entangled in pot and/or trap fisheries and whether a reclassification
of some or all pot and/or trap fisheries is warranted, may be
investigated in a future proposed LOF. Gulf of Maine Herring and
Atlantic Mackerel Stop Seine/Weir
No new information has been received which would change or confirm
the placement of this fishery in Category III. NMFS believes that if
interactions of this fishery with harbor porpoise occur, there would
not be a serious injury or mortality level that would represent greater
than 1 percent of the PBR level for harbor porpoise.
U.S. Mid-Atlantic Mixed Species Stop Seine/Weir (Except the North
Carolina Roe Mullet Stop Net)
This fishery includes the pound net fishery. The EA states that
there is one report of a bottlenose dolphin mortality in the observed
Chesapeake Bay pound net fishery. However, data indicates that more
than one stranded dolphin has been found wrapped in pound net gear. In
addition, a Kogia was recovered from pound net gear in North Carolina,
in 1993. Classification of this fishery will be re-evaluated in a
future proposed LOF.
List of Fisheries
The following two tables list the commercial fisheries of the
United States according to their MMPA section 118 categories. The
estimated number of vessels is expressed in terms of the number of
active participants in the fishery, when possible. If this information
is not available, the estimated number of vessels or persons licensed
for a particular fishery is provided. If no recent information is
available on the number of participants in a fishery, the number from
the 1994 LOF is used.
The information on which marine mammal species/stocks are involved
in interactions with the fishery is based on observer data, logbook
data, stranding reports, and fishers' reports. Only those species or
stocks known to incur injury or mortality incidental to specific
fisheries are listed. An asterisk (*) indicates that the stock is a
strategic stock; a plus (+) indicates that the stock is listed as
threatened or endangered under the ESA.
[[Page 67084]]
Table 1.--List of Fisheries--Commercial Fisheries in the Pacific Ocean
----------------------------------------------------------------------------------------------------------------
Estimated
No. of Marine mammal species/stocks incidentally injured/
Fishery description vessels/ killed
persons
----------------------------------------------------------------------------------------------------------------
Category I:
Gillnet fisheries:
CA angel shark/halibut and other 80 Harbor porpoise, central CA; Common dolphin, short-
species large mesh (>3.5in) set beaked, CA/OR/WA; Common dolphin, long-beaked, CA;
gillnet fishery. California sea lion, U.S.; Harbor seal, CA; Northern
elephant seal, CA breeding.
CA/OR thresher shark/sword
FR Doc. 95-31252 Final List of Fisheries for 1996
fish 150 Steller sea lion, Eastern U.S.*+; Sperm whale, CA to
drift gillnet fishery. WA*+; Dall's porpoise, CA/OR/WA; Pacific white sided
dolphin, CA/OR/WA; Risso's dolphin, CA/OR/WA;
Bottlenose dolphin, CA/OR/WA offshore Common dolphin,
short-beaked, CA/OR/WA; Common dolphin, long-beaked,
CA; Northern right whale dolphin, CA/OR/WA; Short-
finned pilot whale, CA/OR/WA*; Baird's beaked whale,
CA/OR/WA; Mesoplodont beaked whales, CA to WA*;
Cuvier's beaked whale, CA/OR/WA; Pygmy sperm whale,
CA/OR/WA*; California sea lion, U.S.; Harbor seal,
CA; Northern elephant seal, CA breeding; Harbor
porpoise, OR/WA coastal; Humpback whale, CA/OR/WA-
Mexico.
Category II:
Gillnet fisheries:
AK Prince William Sound salmon 509 Steller sea lion, Western U.S.*+; Northern fur seal,
drift gillnet. North Pacific*; Harbor seal, GOA; Pacific white-sided
dolphin, central North Pacific; Harbor porpoise, AK;
Dall's porpoise, AK.
AK Peninsula/Aleutians salmon drift 107 Northern fur seal, North Pacific; Harbor seal, GOA;
gillnet fishery. Harbor seal, Bering Sea; Harbor porpoise, AK; Dall's
porpoise, AK; Northern (Alaska) sea otter, Pacific.
AK Peninsula/Aleutian Island salmon 120 Steller sea lion, Western U.S.*+; Harbor porpoise, AK.
set gillnet.
Southeast Alaska salmon drift 443 Steller sea lion, Eastern U.S.*+; Harbor seal,
gillnet fishery. Southeast AK; Pacific white-sided dolphin, central
North Pacific; Harbor porpoise, AK; Dall's porpoise,
AK; Humpback whale, central North Pacific*+.
AK Cook Inlet drift gillnet........ 554 Steller sea lion, Western U.S.*+; Harbor seal, GOA;
Harbor porpoise, AK; Dall's porpoise, AK.
AK Cook Inlet salmon set gillnet... 633 Steller sea lion, Western U.S.*+; Harbor seal, GOA;
Harbor porpoise, AK; Beluga, Cook Inlet.
AK Yakutat salmon set gillnet...... 152 Harbor seal, Southeast AK.
AK Kodiak salmon set gillnet....... 162 Harbor seal, GOA; Harbor porpoise, AK.
AK Bristol Bay drift gillnet....... 1,741 Steller sea lion, Western U.S.*+; Northern fur seal,
North Pacific*; Harbor seal, Bering Sea; Beluga,
Bristol Bay; Gray whale, Eastern North Pacific.
AK Bristol Bay set gillnet......... 888 Harbor seal, Bering Sea; Beluga, Bristol Bay; Gray
whale, Eastern North Pacific.
AK Metlakatla/Annette Island salmon 60 None documented.
drift gillnet.
WA Puget Sound Region salmon drift 1,044 Harbor porpoise, inland WA; Dall's porpoise, CA/OR/WA;
gillnet fishery (includes all Harbor seal, WA inland.
inland waters south of US-Canada
border and eastward of the Bonilla-
Tatoosh line--Treaty Indian
fishing is excluded).
Purse seine fisheries:
CA anchovy, mackerel, tuna purse 150 Bottlenose dolphin, CA/OR/WA offshore; California sea
seine. lion, U.S.; Harbor seal, CA.
AK Southeast salmon purse seine.... 443 Humpback whale, central North Pacific*+.
Trawl fisheries:
AK pair trawl...................... 2 None documented.
Longline fisheries:
OR swordfish/blue shark surface 30 None documented.
longline fishery.
Category III:
Gillnet fisheries:
AK Prince William Sound set gillnet 29 Steller sea lion, Western U.S.*+; Harbor seal, GOA.
AK Kuskokwim, Yukon, Norton Sound, 1,651 None documented.
Kotzebue salmon gillnet.
AK roe herring and food/bait 162 None documented.
herring gillnet.
WA, OR herring, smelt, shad, 913 None documented.
sturgeon, bottom fish, mullet,
perch, rockfish gillnet.
WA Willapa Bay drift gillnet....... 82 Harbor seal, OR/WA coast; Northern elephant seal, CA
breeding.
WA Grays Harbor salmon drift 24 Harbor seal, OR/WA coast.
gillnet (excluding treaty Tribal
fishing).
WA, OR lower Columbia River 40 California sea lion, U.S.; Harbor seal, OR/WA coast.
(includes tributaries) drift
gillnet.
[[Page 67085]]
CA set and drift gillnet fisheries 341 None documented.
that use a stretched mesh size of
3.5 in or less.
AK miscellaneous finfish set 9 Steller sea lion, Western U.S.*+.
gillnet.
Hawaii gillnet..................... 115 Bottlenose dolphin, Hawaiian; Spinner dolphin,
Hawaiian.
Purse seine, beach seine, round haul
and throw net fisheries:
AK salmon purse seine (except 1,053 Harbor seal, GOA.
Southeast Alaska, which is in
Category II).
AK salmon beach seine.............. 34 None documented.
AK roe herring and food/bait 866 None documented.
herring purse seine.
AK roe herring and food/bait 14 None documented.
herring beach seine.
AK Metlakatla purse seine.......... 3 None documented.
AK octopus/squid purse seine....... 3 None documented.
CA herring purse seine............. 100 Bottlenose dolphin, CA coastal; California sea lion,
U.S.; Harbor seal, CA.
CA sardine purse seine............. 120 None documented.
CA squid purse seine............... 145 California sea lion, U.S.
AK miscellaneous finfish purse 6 None documented.
seine.
AK miscellaneous finfish beach 4 None documented.
seine.
WA salmon purse seine.............. 440 None documented.
WA salmon reef net................. 53 None documented.
WA, OR herring, smelt, squid purse 130 None documented.
seine or lampara.
WA (all species) beach seine or 235 None documented.
drag seine.
HI purse seine..................... 18 None documented.
HI opelu/akule net................. 16 None documented.
HI throw net, cast net............. 47 None documented.
Dip net fisheries:
WA, OR smelt, herring dip net...... 119 None documented.
CA squid dip net................... 115 None documented.
Marine aquaculture fisheries:
WA, OR salmon net pens............. 21 California sea lion, U.S.
CA salmon enhancement rearing pen.. >1 None documented.
OR salmon ranch.................... 1 None documented.
Troll fisheries:
AK salmon troll.................... 1,450 Steller sea lion, Eastern U.S.*+.
CA/OR/WA salmon troll.............. 4,300 None documented.
AK north Pacific halibut, AK bottom 1,354 None documented.
fish, WA, OR, CA albacore,
groundfish, bottom fish, CA
halibut non-salmonid troll
fisheries.
HI trolling, rod and reel.......... 1,795 None documented.
Guam tuna troll.................... 50 None documented.
Commonwealth of the Northern 50 None documented.
Mariana Islands tuna troll.
American Samoa tuna troll.......... <50 None documented.
HI net unclassified................ 106 None documented.
Longline/set line fisheries:
AK state waters sablefish long line/ 240 None documented.
set line.
Miscellaneous finfish/groundfish 838 Harbor seal, GOA; Harbor seal, Bering Sea; Northern
longline/set line. elephant seal, CA breeding.
HI swordfish, tuna, billfish, mahi 140 Hawaiian monk seal, HI*+; Humpback whale, Central
mahi, wahoo, oceanic sharks North Pacific*+; Risso's dolphin, Hawaiian;
longline/set line. Bottlenose dolphin, Hawaiian.
WA, OR North Pacific halibut 350 None documented.
longline/set line.
AK southern Bering Sea, Aleutian 226 Northern elephant seal, CA breeding; Killer whale,
Islands, and Western Gulf of resident; Killer whale, transient.
Alaska sablefish longline/set line
(federally regulated waters).
[[Page 67086]]
AK halibut longline/set line (state 213 Steller sea lion, Western U.S.*+.
and Federal waters).
WA, OR, CA groundfish, bottomfish 367 None documented.
longline/set line.
AK octopus/squid longline.......... 1 None documented.
CA shark/bonito longline/set line.. 10 None documented.
Trawl fisheries:
WA, OR, CA shrimp trawl............ 300 None documented.
AK shrimp otter trawl and beam 48 None documented.
trawl (statewide and Cook Inlet).
AK Gulf of Alaska groundfish trawl. 490 Steller sea lion, Western U.S.*+; Northern fur seal,
North Pacific*; Harbor seal, GOA; Dall's porpoise,
AK; Northern elephant seal, CA breeding.
AK Bering Sea and Aleutian Islands 490 Steller sea lion, Western U.S.*+; Northern fur seal,
groundfish trawl. North Pacific*; Killer whale, resident; Killer whale,
transient; Pacific white-sided dolphin, central North
Pacific; Harbor porpoise, AK; Harbor seal, Bering
Sea; Harbor seal, GOA; Bearded seal, AK; Ringed seal,
AK; Dall's porpoise, AK; Spotted seal, AK; Ribbon
seal, AK; Northern elephant seal, CA breeding;
Northern (Alaska) sea otter, Pacific; Walrus,
Pacific.
AK state-managed waters of Cook 8 None documented.
Inlet, Kachemak Bay, Prince
William Sound, Southeast AK
groundfish trawl.
AK miscellaneous finfish otter or 324 None documented.
beam trawl.
AK food/bait herring trawl......... 2 None documented.
WA, OR, CA groundfish trawl........ 585 Steller sea lion, Western U.S.*+; Northern fur seal,
North Pacific*; Pacific white-sided dolphin, central
North Pacific; Dall's porpoise, CA/OR/WA; California
sea lion, U.S.; Harbor seal, OR/WA coast.
Pot, ring net, and trap fisheries:
AK crustacean pot.................. 1,951 None documented.
AK Bering Sea, GOA finfish pot..... 226 Harbor seal, GOA; Northern (AK) sea otter, Pacific.
WA, OR, CA sablefish pot........... 176 None documented.
WA, OR, CA crab pot................ 1,478 None documented.
WA, OR shrimp pot and trap......... 254 None documented.
CA lobster, prawn, shrimp, rock 608 None documented.
crab, fish pot.
OR, CA hagfish pot or trap......... 25 None documented.
HI lobster trap.................... 15 Hawaiian monk seal, HI*+.
HI crab trap....................... 22 None documented.
HI fish trap....................... 19 None documented.
HI shrimp trap..................... 5 None documented.
Handline and jig fisheries:
AK North Pacific halibut handline 84 None documented.
and mechanical jig.
AK other finfish handline and 474 None documented.
mechanical jig.
AK octopus/squid handline.......... 2 None documented.
WA groundfish, bottomfish jig...... 679 None documented.
HI aku boat, pole and line......... 54 None documented.
HI inshore handline................ 650 Bottlenose dolphin, HI.
HI deep sea bottomfish............. 434 Hawaiian monk seal, HI*+.
HI tuna............................ 144 Rough-toothed dolphin, HI; Bottlenose dolphin, HI;
Hawaiian monk seal, HI*+.
Guam bottomfish.................... <50 None documented.
Commonwealth of the Northern <50 None documented.
Mariana Islands bottomfish.
American Samoa bottomfish.......... <50 None documented.
Harpoon fisheries:
CA swordfish harpoon............... 228 None documented.
Pound net/weir fisheries:
AK Southeast Alaska herring food/ 7 None documented.
bait pound net.
WA herring brush weir.............. 1 None documented.
Bait pens:
WA/OR/CA bait pens................. 13 None documented.
Dredge fisheries:
Coastwide scallop dredge........... 106 None documented.
Dive, hand/mechanical collection
fisheries:
AK abalone......................... 177 None documented.
AK dungeness crab.................. 1 None documented.
[[Page 67087]]
AK herring spawn-on-kelp........... 306 None documented.
AK urchin and other fish/shellfish. 127 None documented.
AK clam hand shovel................ 125 None documented.
AK clam mechanical/hydraulic 3 None documented.
fishery.
WA herring spawn-on-kelp........... 4 None documented.
WA/OR sea urchin, other clam, 637 None documented.
octopus, oyster, sea cucumber,
scallop, ghost shrimp hand, dive,
or mechanical collection.
CA abalone......................... 111 None documented.
CA sea urchin...................... 583 None documented.
HI squiding, spear................. 267 None documented.
HI lobster diving.................. 6 None documented.
HI coral diving.................... 2 None documented.
HI handpick........................ 135 None documented.
WA shellfish aquaculture........... 684 None documented.
WA, CA kelp........................ 4 None documented.
HI fish pond....................... 10 None documented.
Commercial passenger fishing vessel
(charter boat) fisheries:
AK, WA, OR, CA commercial passenger 1,243 None documented.
fishing vessel.
AK octopus/squid ``other''......... 19 None documented.
HI ``other''....................... 114 None documented.
Live finfish/shellfish fisheries:
CA finfish and shellfish live trap/ 93 None documented.
hook-and-line.
----------------------------------------------------------------------------------------------------------------
Table 2.--List of Fisheries--Commercial Fisheries in the Atlantic Ocean, Gulf of Mexico, and Caribbean
----------------------------------------------------------------------------------------------------------------
Estimated
No. of Marine mammal species/stocks incidentally injured/
Description of fishery vessels/ killed
persons
----------------------------------------------------------------------------------------------------------------
Category I:
Pair trawl fisheries:
U.S. Atlantic large pelagics pair 7 Risso's dolphin, WNA; Long-finned pilot whale, WNA*;
trawl. Common dolphin, WNA*; Bottlenose dolphin, WNA
offshore*.
Gillnet fisheries:
Atlantic Ocean, Caribbean, Gulf of 75 North Atlantic right whale, WNA*+; Humpback whale,
Mexico large pelagics drift WNA*+; Sperm whale, WNA*+; Dwarf sperm whale, WNA*;
gillnet. Pygmy sperm whale, WNA*; Cuvier's beaked whale, WNA*;
True's beaked whale, WNA*; Gervais' beaked whale,
WNA*; Blainville's beaked whale, WNA*; Risso's
dolphin, WNA; Long-finned pilot whale, WNA*; Short-
finned pilot whale, WNA*; White-sided dolphin, WNA*;
Common dolphin, WNA*; Atlantic spotted dolphin, WNA*;
Pantropical spotted dolphin, WNA*; Striped dolphin,
WNA; Spinner dolphin, WNA; Bottlenose dolphin, WNA
offshore*; Harbor porpoise, GME/BF*.
New England multispecies sink 341 North Atlantic right whale, WNA*+; Humpback whale,
gillnet (including species as WNA*+; Minke whale, Canadian east coast; Killer
defined in the Multispecies whale, WNA; White-sided dolphin, WNA*; Striped
Fisheries Management Plan and dolphin, WNA; Bottlenose dolphin, WNA offshore;
spiny dogfish and monkfish). Harbor porpoise, GME/BF*; Harbor seal, WNA; Gray
seal, Northwest North Atlantic; Common dolphin; Fin
whale; Spotted dolphin; False killer whale; Harp
seal.
Longline fisheries:
Atlantic Ocean, Caribbean, Gulf of 361 Humpback whale, WNA*+; Minke whale, Canadian east
Mexico large pelagics longline. coast; Risso's dolphin, WNA; Long-finned pilot whale,
WNA*; Short-finned pilot whale, WNA*; Common dolphin,
WNA*; Atlantic spotted dolphin, WNA*; Pantropical
spotted dolphin, WNA; Striped dolphin, WNA;
Bottlenose dolphin, WNA offshore*; Bottlenose
dolphin, GMX Outer Continental Shelf; Bottlenose
dolphin, GMX Continental Shelf Edge and Slope;
Atlantic spotted dolphin, Northern GMX; Pantropical
spotted dolphin, Northern GMX; Risso's dolphin,
Northern GMX; Harbor porpoise, GME/BF*.
Category II:
Gillnet fisheries:
U.S. mid-Atlantic coastal gillnet >655 Humpback whale, WNA*+; Minke whale, Canadian east
fishery. coast; Bottlenose dolphin, WNA offshore*; Bottlenose
dolphin, WNA coastal*+; Harbor porpoise, GME/BF*.
Gulf of Maine small pelagics 133 Humpback whale, WNA*+; White-sided dolphin, WNA;
surface gillnet. Harbor seal, WNA.
[[Page 67088]]
Southeastern U.S. Atlantic shark 10 Bottlenose dolphin, WNA coastal*; North Atlantic right
gillnet fishery. whale, WNA*+.
Trawl fisheries:
Atlantic squid, mackerel, 620 Common dolphin, WNA*; Risso's dolphin, WNA*; Long-
butterfish trawl. finned pilot whale, WNA*; Short-finned pilot whale,
WNA*; White-sided dolphin, WNA*.
Haul seine fisheries:
North Carolina haul seine.......... unknown Bottlenose dolphin, WNA coastal*; Harbor porpoise, GME/
BF*.
Stop net fisheries:
North Carolina roe mullet stop net. 13 Bottlenose dolphin, WNA coastal*.
Category III:
Gillnet fisheries:
Rhode Island, southern 32 Humpback whale, WNA*+; Bottlenose dolphin, WNA
Massachusetts (to Monomoy Island), coastal*+; Harbor porpoise, GME/BF*.
and New York Bight (Raritan and
Lower New York Bays) inshore
gillnet.
Long Island Sound inshore gillnet.. 20 Humpback whale, WNA*+; Bottlenose dolphin, WNA
coastal*+; Harbor porpoise, GME/BF*.
Delaware Bay inshore gillnet....... 60 Humpback whale, WNA*+; Bottlenose dolphin, WNA
coastal*+; Harbor porpoise, GME/BF*.
Chesapeake Bay inshore gillnet..... 45 None documented.
North Carolina inshore gillnet..... 94 None documented.
Gulf of Mexico inshore gillnet
(black drum, sheepshead, weakfish,
mullet, spot, croaker)unknownNone
documented..
Offshore monkfish bottom gillnet... <50 None documented.
Gulf of Maine, Southeast U.S. 1,285 Minke whale, Canadian east coast; Harbor porpoise, GME/
Atlantic coastal shad, sturgeon BF*; Bottlenose dolphin, WNA coastal*+.
gillnet (includes waters of North
Carolina).
Gulf of Mexico coastal gillnet ........... Bottlenose dolphin, Western GMX coastal; Bottlenose
(includes mullet gillnet fishery dolphin, Northern GMX coastal; Bottlenose dolphin,
in LA and MS). Eastern GMX coastal; Bottlenose dolphin, GMX Bay,
Sound, & Estuarine*.
Southeastern U.S. Atlantic coastal 0.00 Bottlenose dolphin, WNA coastal*+.
gillnet.
Florida east coast, Gulf of Mexico 271 Bottlenose dolphin, Western GMX coastal; Bottlenose
pelagics king and Spanish mackerel dolphin, Northern GMX coastal; Bottlenose dolphin,
gillnet. Eastern GMX coastal; Bottlenose dolphin, GMX Bay,
Sound, & Estuarine*.
Trawl fisheries:
North Atlantic bottom trawl........ 1,052 Long-finned pilot whale, WNA*; Short-finned pilot
whale, WNA*; White-sided dolphin, WNA*; Striped
dolphin, WNA; Bottlenose dolphin, WNA offshore*.
Mid-Atlantic, Southeastern U.S. >18,000 Bottlenose dolphin, WNA coastal*+.
Atlantic, Gulf of Mexico shrimp
trawl.
Gulf of Maine northern shrimp trawl 320 None documented.
Gulf of Maine mackerel trawl....... 30 None documented.
Gulf of Maine, Mid-Atlantic sea 215 None documented.
scallop trawl.
Gulf of Maine, Southern North 5 None documented.
Atlantic, Gulf of Mexico coastal
herring trawl.
Mid-Atlantic mixed species trawl... >1,000 None documented.
Gulf of Mexico butterfish trawl.... 2 Atlantic spotted dolphin, Northern GMX; Pantropical
spotted dolphin, Northern GMX.
Georgia, South Carolina, Maryland 25 None documented.
whelk trawl.
Calico scallops trawl.............. 200 None documented.
Bluefish, croaker, flounder trawl.. 550 None documented.
Crab trawl......................... 400 None documented.
U.S. Atlantic monkfish trawl....... unknown None documented.
Marine aquaculture fisheries:
Finfish aquaculture................ 48 None documented.
Shellfish aquaculture.............. unknown None documented.
Purse seine fisheries:
Gulf of Maine Atlantic herring 30 Harbor porpoise, GME/BF*; Harbor seal, WNA; Gray seal,
purse seine. Northwest North Atlantic.
[[Page 67089]]
Mid-Atlantic menhaden purse seine.. 22 Bottlenose dolphin, WNA coastal*+.
Gulf of Maine menhaden purse seine. 10 None documented.
Gulf of Mexico menhaden purse seine 50 Bottlenose dolphin, Northern GMX coastal.
Florida west coast sardine purse 10 Bottlenose dolphin, Eastern GMX coastal.
seine.
U.S. mid-Atlantic hand seine....... >250 None documented.
Longline/hook-and-line fisheries:
Gulf of Maine tub trawl groundfish 46 Harbor seal, WNA; Gray seal, Northwest North Atlantic.
bottom longline/ hook-and-line.
Southeastern U.S. Atlantic, Gulf of 3,800 None documented.
Mexico snapper-grouper and other
reef fish bottom longline/hook-and-
line.
Southeastern U.S. Atlantic, Gulf of 124 None documented.
Mexico shark bottom longline/hook-
and-line.
Gulf of Maine, U.S. mid-Atlantic 26,223 None documented.
tuna, shark swordfish hook-and-
line/harpoon.
Southeastern U.S. Atlantic, Gulf of 1,446 None documented.
Mexico & U.S. mid-Atlantic pelagic
hook-and-line/harpoon.
Trap/pot fisheries--lobster and crab:
Gulf of Maine, U.S. mid-Atlantic 100 North Atlantic right whale, WNA*+; Humpback whale,
mixed species trap/pot. WNA*+; Minke whale, Canadian east coast; Harbor
porpoise, GME/BF*; Harbor seal, WNA; Gray seal,
Northwest North Atlantic.
U.S. mid-Atlantic and Southeast 30 None documented.
U.S. Atlantic black sea bass trap/
pot.
U.S. mid-Atlantic eel trap/pot..... >700 None documented.
Gulf of Maine, U.S. mid-Atlantic 10,613 North Atlantic right whale, WNA*+; Humpback whale,
inshore lobster trap/pot. WNA*+; Fin whale, WNA*; Minke whale, Canadian east
coast; White-sided dolphin, Western North Atlantic;
Harbor seal, WNA.
Gulf of Maine, U.S. mid-Atlantic 2,902 North Atlantic right whale, WNA*; Humpback whale,
offshore lobster trap/pot. WNA*+; Fin whale, WNA*; Minke whale, Canadian east
coast; White-sided dolphin, WNA; Harbor seal, WNA.
Atlantic Ocean, Gulf of Mexico blue 20,500 Bottlenose dolphin, WNA coastal*; Bottlenose dolphin,
crab trap/pot. Western GMX coastal; Bottlenose dolphin, Northern GMX
coastal; Bottlenose dolphin, Eastern GMX coastal;
Bottlenose dolphin, GMX Bay, Sound, & Estuarine*;
Florida manatee, FL*+.
Southeastern U.S. Atlantic, Gulf of 750 Florida manatee, FL*+.
Mexico, Caribbean spiny lobster
trap/pot.
Stop seine/weir/pound fisheries:
Gulf of Maine herring and Atlantic 50 North Atlantic right whale, WNA*; Humpback whale,
mackerel stop seine/weir. WNA*+; Minke whale, Canadian east coast; Harbor
porpoise, GME/BF*; Harbor seal, WNA; Gray seal,
Northwest North Atlantic.
U.S. mid-Atlantic mixed species 500 None documented.
stop/seine/weir (except the North
Carolina roe mullet stop net).
U.S. mid-Atlantic crab stop seine/ 2,600 None documented.
weir.
Dredge fisheries:
Gulf of Maine, U.S. mid-Atlantic 233 None documented.
sea scallop dredge.
U.S. mid-Atlantic offshore surfclam 100 None documented.
and quahog dredge.
Gulf of Maine mussel............... >50 None documented.
U.S. mid-Atlantic/Gulf of Mexico 7,000 None documented.
oyster.
Haul seine fisheries:
Southeastern U.S. Atlantic, 150 None documented.
Caribbean haul seine.
Beach seine fisheries:
Caribbean beach seine.............. 15 Florida manatee, FL+.
[[Page 67090]]
Dive, hand/mechanical collection
fisheries:
Gulf of Maine urchin dive, hand/ >50 None documented.
mechanical collection.
Atlantic Ocean, Gulf of Mexico, 20,000 None documented.
Caribbean shellfish dive, hand/
mechanical collection.
Commercial passenger fishing vessel
(charter boat) fisheries:
Atlantic Ocean, Gulf of Mexico, 4,000 None documented.
Caribbean commercial passenger
fishing vessel.
----------------------------------------------------------------------------------------------------------------
*Marine Mammal stock is strategic.
+Stock is listed as threatened or endangered under the ESA, or as depleted under the MMPA.
List of Abbreviations Used in Table 2:
FL--Florida.
GA--Georgia.
GME/BF--Gulf of Maine/Bay of Fundy.
GMX--Gulf of Mexico.
NC--North Carolina.
SC--South Carolina
TX--Texas.
WNA--Western North Atlantic.
Classification
This action has been determined to be not significant for purposes
of E.O. 12866.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Small Business Administration
that this rule would not have a significant economic impact on a
substantial number of small entities. This rule will require certain
fishers to pay a fee to obtain an Authorization Certificate that will
allow the taking of marine mammals incidental to commercial fishing
operations.
Approximately 20,000 fishers were required to register under the
old section 114 regime and pay a $30 fee. The fee under the new section
118 regime is reduced to $25. This fee with respect to expected
revenues is not significant.
This final rule does not contain policies with federalism
implications sufficient to warrant preparation of a federalism
assessment under E.O. 12612.
Notwithstanding any other provision of law, no person is required
to respond to nor shall a person be subject to a penalty for failure to
comply with a collection of information subject to the requirements of
the Paperwork Reduction Act unless that collection of information
displays a currently valid OMB Control Number.
This final LOF determines which vessel owners must register under
the MMPA, and which commercial fishers must report marine mammal
mortalities and injuries within 48 hours of returning to port, as
required by the section 118 implementing regulations. The collections
associated with these registration and reporting requirements have been
approved by OMB under OMB control numbers 0648-0224 and 0648-0225.
Dated: December 19, 1995.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
[FR Doc. 95-31252 Filed 12-20-95; 4:54 pm]
BILLING CODE 3510-22-W
Complete official Federal Register PDF
FR Doc. 95-31197 Food Labeling: Reference Daily Intakes
[Federal Register Volume 60, Number 249 (Thursday, December 28, 1995)]
[Rules and Regulations]
[Pages 67164-67175]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31197]
[[Page 67163]]
_______________________________________________________________________
Part II
Department of Health and Human Services
_______________________________________________________________________
Food and Drug Administration
_______________________________________________________________________
21 CFR Part 101
Food Labeling; Final Rule and Proposed Rules
Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 /
Rules and Regulations
[[Page 67164]]
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 101
[Docket No. 90N-0134]
RIN 0910-AA19
Food Labeling: Reference Daily Intakes
AGENCY: Food and Drug Administration, HHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is amending its
regulations to establish Reference Daily Intakes (RDI's) for vitamin K,
selenium, manganese, chromium, molybdenum, and chloride, but not for
fluoride. The agency is also amending its regulations to modify the
units of measure that are used to declare the amount of biotin, folate,
calcium, and phosphorus in food. In addition, the agency is amending
its regulations to make consideration of selenium, chromium,
molybdenum, and chloride optional in making a determination as to
whether a food is nutritionally inferior to a food for which it
substitutes and that it resembles. These actions are intended to assist
consumers in understanding the nutritional significance of foods in the
context of a total daily diet and are in recognition of the fact that
the National Academy of Sciences (NAS) established Recommended Dietary
Allowances (RDA's) and Estimated Safe and Adequate Daily Dietary
Intakes (ESADDI's) for vitamin K, selenium, manganese, chromium,
molybdenum, and chloride either in 1980 or 1989.
EFFECTIVE DATE: January 1, 1997.
FOR FURTHER INFORMATION CONTACT: Camille E. Brewer, Center for Food
Safety and Applied Nutrition (HFS-165), Food and Drug Administration,
200 C St. SW., Washington, DC 20204, 202-205-5483.
SUPPLEMENTARY INFORMATION
I. Background
In the Federal Register of January 4, 1994 (59 FR 427), FDA
published a proposed rule in a document entitled ``Food Labeling:
Reference Daily Intakes'' (hereinafter referred to as ``the January
1994 proposal''). This document grew out of earlier proposals that,
among other things, sought to amend FDA's label reference value
regulations to replace the United States Recommended Daily Allowances
(U.S. RDA's) with Reference Daily Intakes (RDI's) for protein and 26
vitamins and minerals.
In the Federal Register of July 19, 1990 (55 FR 29476), FDA
published its initial proposal on RDI's in a document entitled ``Food
Labeling Reference Daily Intakes and Daily Reference Values''
(hereinafter referred to as ``the July 1990 proposal''). Following the
passage of the Nutrition Labeling and Education Act of 1990 (Pub. L.
101-535) (hereinafter referred to as ``the 1990 amendments''), FDA
republished this proposal in modified form on November 27, 1991 (56 FR
60366) (hereinafter referred to as ``the supplementary proposal''). FDA
summarized and reviewed the comments to these proposals in a final rule
entitled ``Food Labeling; Reference Daily Intakes and Daily Reference
Values'' (58 FR 2206, January 6, 1993, and corrected at 58 FR 17104,
April 1, 1993) (hereinafter referred to as ``the RDI/DRV final rule'').
However, on October 6, 1992, before FDA issued the final rule,
Congress passed the Dietary Supplement Act of 1992 (Title II of Pub. L.
102-571) (hereinafter referred to as the ``DS act''). Section 202(a)(1)
of the DS act imposed a moratorium on the implementation of the 1990
amendments as they applied to dietary supplements of vitamins,
minerals, herbs, or other similar nutritional substances until December
15, 1993. Section 203 of the DS act prohibited FDA from promulgating
regulations before November 8, 1993, that required the use of, or that
were based on, recommended daily allowances of vitamins or minerals,
other than regulations establishing the U.S. RDA's specified in
Sec. 101.9(c)(7)(iv)(21 CFR 101.9(c)(7)(iv)) (1992), as in effect on
October 6, 1992.
The label reference values in Sec. 101.9(c)(7)(iv) (1992) were
based to a large extent on the 1968 RDA's (Ref. 1), and thus they are
more than 25 years old. These label values do not reflect the
significant advances in scientific knowledge about essential nutrient
requirements that have occurred over the last 20 years. Based on these
advances, in 1980, the NAS established, for the first time, ESADDI
values for vitamin K, biotin, pantothenic acid, copper, manganese,
fluoride, chromium, selenium, molybdenum, sodium, potassium, and
chloride (Ref. 2). In 1989, the NAS updated the values for vitamin K
and selenium, making them RDA's rather than ESADDI's (Ref. 3). At the
same time, the NAS continued to provide ESADDI values for manganese,
fluoride, chromium, and molybdenum, but NAS dropped the suggested
values for sodium, potassium, and chloride, giving instead estimated
minimum requirements for healthy persons at various ages (Ref. 3).
With its discretion constrained by section 203 of the DS act, and
yet faced with a need to establish a labeling scheme that manufacturers
could implement as quickly as possible, FDA simply adopted in its new
regulations the values in Sec. 101.9(c)(7)(iv) as in effect in 1992
(see RDI/DRV final rule). This solution created a new problem. Section
101.9(c)(7)(iv) (1992) did not contain label reference values for
vitamin K, selenium, manganese, chromium, molybdenum, chloride, and
fluoride, which were addressed in the 1989 RDA's (Ref. 3).
In its January 1994 proposal, FDA proposed to establish RDI's for
vitamin K, selenium, manganese, chromium, molybdenum, chloride, and
fluoride for the following reasons: Such values are necessary to permit
the declaration of these nutrients in the nutrition labeling of all
foods; they will assist consumers in understanding the significance of
the amount of these nutrients present in foods in the context of a
total daily diet; and these values will permit nutrient content claims
to be made for these nutrients.
FDA received approximately 65 letters in response to the January
1994 proposal. Each letter contained one or more comments. Many
comments supported the proposal generally or supported aspects of the
proposal. Other comments addressed issues outside the scope of the
proposal (e.g., nutrition education, freedom of choice, premarket
clearance, and fortification policies) and will not be discussed here.
Several comments suggested modifications or revisions of various
aspects of the proposal. A summary of the comments, the agency's
responses to the comments, and a discussion of the agency's conclusions
with respect to the RDI's for the seven nutrients follows:
II. Authority for Additional Label Reference Values
Section 2(b)(1)(A) of the 1990 amendments provides that the
Secretary of Health and Human Services (and, by delegation, FDA) shall
issue regulations that require that the required nutrition label
information be conveyed in a manner that enables the public to readily
observe and comprehend such information and to understand its relative
significance in the context of a total daily diet. FDA, in its food
labeling initiative, has tried generally to assist consumers in
understanding the nutrition label information relative to a total daily
diet (see 55 FR 29476) and to do so based on the most current
scientific and public health knowledge.
1. The majority of comments agreed with establishing RDI's for the
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additional nutrients. These comments applauded FDA's intention to
broaden the list of nutrients for which RDI's are established and
stated that this action is in keeping with the intent of the 1990
amendments to provide additional useful information to consumers. On
the other hand, one comment questioned the wisdom of establishing new
RDI's before conducting surveys to gauge the extent to which the RDI's
can be comprehended and expressed concern the new RDI's would only add
to public confusion.
The agency does not agree with the latter comment. Before issuing
final food labeling rules on January 6, 1993, FDA and the food industry
conducted numerous focus groups and informal preference studies that
analyzed consumer understanding of different formats for presenting
nutrition information, including the question of whether consumers
could understand RDI's, which are incorporated into the ``Nutrition
Facts'' panel by means of the percent Daily Value (DV) declaration.
This research demonstrated that the percent DV format improved
consumers' abilities to make correct dietary judgments about a food in
the context of the total daily diet (58 FR 2070 at 2127). Therefore,
FDA finds that percent DV's, and the underlying RDI's can be, and are,
understood by consumers and used by them successfully. Therefore, FDA
finds that this comment provides no basis for not establishing RDI's
for the seven nutrients. Consistent with the vast majority of comments,
FDA is adopting these values except the value for fluoride, as
explained below.
III. Nutrient Selection and Determination of Values for RDI's
A. Basis for RDI's
2. Most comments strongly supported the use of the NAS' RDA's as
the basis for the establishment of RDI values. However, a couple of
comments objected to providing RDI's only for nutrients with RDA's. One
comment urged FDA to permit the inclusion of boron, nickel, silicon,
tin, and vanadium as nutrients to be declared within the nutrition
label. The comment stated that these nutrients have been recognized as
essential by leading experts on trace minerals.
Since the inception of the nutrition labeling program, FDA has
relied on the judgment of the NAS' Food and Nutrition Board concerning
the essentiality of particular nutrients in human nutrition and the
required levels of those nutrients (37 FR 6493, March 30, 1972). The
procedures followed by the NAS ensure that scientific consensus exists
for the essentiality in human nutrition of nutrients for which RDA's
and ESADDI's are established. In brief, these procedures include a
review of the available scientific literature by experts in the field
of human nutrition, requests for public input, consultation with other
knowledgeable experts, a review by the Food and Nutrition Board, and a
review by the National Research Council's Report Review Committee. The
types of evidence on which the RDA's are based include: (1) Studies of
subjects maintained on diets containing low or deficient levels of a
nutrient, followed by correction of the deficit with measured amounts
of the nutrient; (2) nutrient balance studies that measure nutrient
status in relation to intake; (3) biochemical measurements of tissue
saturation or adequacy of molecular function in relation to nutrient
intake; (4) nutrient intakes of fully breast-fed infants and of
apparently healthy people from their food supply; (5) epidemiological
observations of nutrient status in populations in relation to intake;
and (6) in some cases, extrapolation of data from animal experiments
(Ref. 3, p. 1).
Strong and uniform support was provided for the use of NAS RDA's as
the basis for nutrition label information during the initial
development of nutrition labeling regulations in 1972 as well as in
response to the July 1990 proposal and the supplementary proposal. FDA
noted in the RDI/DRV final rule that ``The majority of comments on this
topic * * * supported the continued use of the NAS RDA's as the basis
for developing label reference values for vitamins and minerals'' (58
FR 2206 at 2208). Based on the continuing support shown in the comments
submitted in the present rulemaking, the agency continues to believe
that the NAS' ``Recommended Dietary Allowances'' (Ref. 3) remains the
most widely accepted and respected source of information on human
nutrient requirements.
The lack of an RDA or ESADDI does not mean that other substances
should not be included in the diet. It does mean, however, that the
level of scientific agreement does not exist that would justify
highlighting these substances for special attention to ensure that they
are included in the diet at appropriate levels.
There are two criteria for determining which nutrients should be
considered for RDI's. The first and foremost is scientific consensus as
to the essentiality of the nutrient. Nutrients that are essential in
human nutrition warrant special consideration on the label to guarantee
that consumers have the means, through nutrition labeling, to account
for the nutrient in the total daily diet.
The second criterion is scientific agreement concerning the level
at which the nutrient should be consumed. The RDA's are defined as
``the levels of intake of essential nutrients that, on the basis of
scientific knowledge, are judged by the Food and Nutrition Board to be
adequate to meet the known nutrient needs of practically all healthy
persons'' (Ref. 3, p. 1). The ESADDI's are defined as ``a category of
safe and adequate intakes for essential nutrients when data were
sufficient to estimate a range of requirements, but insufficient for
developing an RDA'' (Ref. 3, pp. 6 and 7).
The criteria of essentiality and of recommended intakes provides
assurance that there is scientific agreement regarding the need for
certain nutrients and guidance regarding appropriate levels.
While the comment supporting the inclusion of boron, nickel,
silicon, tin, and vanadium submitted published reports of the
requirements for these nutrients in animal nutrition, it submitted no
data or other information that there is scientific consensus that these
minerals are essential in human nutrition, or that there is agreement
concerning recommended daily intake levels for these minerals. Because
of the lack of such data and the NAS' position that deficiencies of
these trace elements have not been established in humans, and, hence,
that there are no data from which human requirements can be established
(Ref. 3, p. 267), the agency is not establishing RDI's for boron,
nickel, silicon, tin, or vanadium. Therefore, in accordance with
Sec. 101.9(c), these nutrients cannot be declared within the nutrition
label on conventional foods. However, in a companion document in this
issue of the Federal Register entitled ``Food Labeling; Statement of
Identity, Nutrition Labeling and Ingredient Labeling of Dietary
Supplements,'' FDA is proposing regulations to implement the Dietary
Supplement Health and Education Act of 1994 (the DSHEA) that will, in
part, allow dietary ingredients for which RDI's have not been
established (e.g., boron) to be listed in the nutrition label of
dietary supplements.
3. One comment urged FDA to consider the promotion of optimal
health, instead of nutrient adequacy, in the determination of label
reference values.
As discussed in the response to the previous comment, the RDI's are
based on the NAS RDA's, and the agency is
[[Page 67166]]
not persuaded that a change in that basis is warranted. NAS is in the
process, however, of evaluating the basis on which it determines the
RDA's. In 1994, the Food and Nutrition Board (FNB) of the Institute of
Medicine of the NAS published a document entitled ``How Should the
Recommended Dietary Allowances Be Revised'' (Ref. 4). In this document,
NAS summarized its multi-step plan for reconceptualizing the RDA's and
announced its intention to examine alternate bases for determining the
RDA's. NAS stated:
Nutrition science, similar to all scientific endeavors, is
rapidly changing and evolving. Nutrition scientists and
practitioners continue to learn more with each passing day about
nutrition and its effect on health. The role of the RDAs at any time
is to provide the best consensus of nutrition science interpreted to
recommended values at that time. The FNB believes that the science
of nutrition has advanced significantly, and the next edition of the
RDAs will need to reflect this progress. One consideration is
expanding the RDA concept to include reducing the risk of chronic
disease. (Ref. 4, p. 14.)
To accomplish this task the FNB proposed to develop four reference
points: Deficient, average requirement, recommended dietary allowances,
and upper safe levels (Ref. 4, pp. 18-20). They also proposed to
develop a publication describing how the new RDA's could be used for
the variety of purposes to which they are put (e.g., for food labeling)
(Ref. 4, pp. 20-21).
FDA is committed to working with the NAS in its development of new
approaches for providing standards to serve as goals for good nutrition
and in the implementation of those approaches. The agency believes that
any action to change the basis for the RDI's should await completion of
the NAS process to ensure that such an action reflects scientific
consensus and to avoid the possible need for consecutive relabeling of
foods that might occur if FDA were to proceed to revise the RDI's
before NAS published new values.
B. Method for the Determination of RDI Values
4. Many comments supported the method that FDA used for determining
the proposed RDI's for the seven nutrients. One comment, however,
supported the proposal to establish RDI's for nutrients with RDA's
(i.e., vitamin K, selenium) but not for nutrients with ESADDI's (i.e.,
chloride, manganese, chromium, molybdenum, and fluoride). The comment
contended that FDA's proposed use of ESADDI's for establishing RDI's is
not scientifically sound. The comment argued that because ESADDI's are
merely estimates, established when scientific data are insufficient to
develop an RDA, RDI's should not be based on them. The comment also
stated that, because recommended levels are presented as a range of
values, using the midpoint of such a range is of questionable
scientific validity.
Another comment stated that using the midpoint of the ESADDI range
results in RDI's that are too high for manganese, chromium, and
molybdenum. The comment stated that the upper value of the ESADDI range
is the upper limit of safety for the specified age group. This comment
recommended that the lowest value of the ESADDI range be used for
determining the RDI for these nutrients because this level is more than
adequate to meet the needs of most individuals and is higher than usual
intakes. The comment stated that the proposed values would be difficult
to obtain by diet and would likely result in many people believing that
they are ``deficient'' when they are not.
Based on its consideration of the comments on the 1990 proposal and
on the supplementary proposal, FDA determined in the RDI/DRV final rule
that it is appropriate to establish label reference values for vitamins
and minerals by selecting the highest NAS RDA value from among those
for adults and persons 4 or more years of age (excluding pregnant and
lactating females) (58 FR 2206 at 2211). The agency concluded that use
of these values would ensure that the value set as the RDI would take
into account the intakes of vulnerable and at-risk groups. At the same
time, where several ESADDI ranges were established by the NAS for
specific age groups, FDA said that it would select the highest range,
and then use the midpoint of that range as the RDI (58 FR 2206 at
2212). In its July 1990 proposal, FDA based the proposed RDI's for
nutrients with ESADDI's presented as a series of ranges of values on
the midpoint of the highest ESADDI range (55 FR 29476 at 29481), and
most of the comments supported that approach. Accordingly, in the
current rulemaking, FDA used this method to derive the proposed values
for chloride, manganese, fluoride, chromium, and molybdenum (59 FR
429).
As stated previously, the vast majority of comments to the January
1994 proposal supported this approach. FDA disagrees with the comment
that it is not scientifically sound to base RDI's on ESADDI's. In the
July 1990 proposal, FDA acknowledged that available data regarding
nutrients with ESADDI's are not sufficient to allow NAS to set specific
RDA values. However, in ``Recommended Dietary Allowances,'' the NAS
does state that ESADDI's are established ``for essential nutrients when
data were sufficient to estimate a range of requirements'' (Ref. 3, p.
7). From this statement, the agency concludes that, for those nutrients
for which it has established ESADDI's, the NAS reviewed similar types
of evidence as that used in arriving at RDA's and applied the same
rigorous scientific approach, satisfying itself that the nutrients were
essential for human nutrition, and that, while the data were not
sufficient to set precise recommended levels, they were sufficient to
arrive at a scientifically supported range.
Accordingly, these nutrients meet the two criteria (discussed in
comment 2 of section III.B. of this document) used by FDA in
determining which nutrients should be considered for RDI's, namely,
that there is scientific consensus as to the essentiality of the
nutrient and scientific agreement concerning the level at which the
nutrient should be consumed. While for these nutrients that level is a
range rather than an exact amount, it nonetheless reflects the amount
of the nutrient known to be necessary to meet the nutrient needs of
individuals according to age group. Based on these facts, FDA concludes
that it is proper to establish RDI's for nutrients for which the NAS
has established ESADDI's.
This action is consistent with the agency's action in 1973 when it
established U.S. RDA values for biotin, pantothenic acid, copper, and
zinc based on discussions of nutrient requirements in the text of the
seventh edition of ``Recommended Dietary Allowances'' (Ref. 1) (38 FR
2125 and 2146, January 19, 1973). At that time, RDA's did not exist for
these four nutrients, and ESADDI's had not been introduced. Both then
and now, by providing a reference value, the agency allowed for the
nutrients to be listed in nutrition labeling so that manufacturers
could voluntarily provide consumers with information on the amount (in
terms of percent of a reference value) of these essential nutrients
that is present in a serving of food.
The agency is not persuaded that using the lowest value of the
ESADDI range is a preferable method for determining RDI's for nutrients
with ESADDI's. The vast majority of comments received on this subject
in this rulemaking, as well as on the July 1990 proposal and on the
supplementary proposal, argued strongly for label reference values that
[[Page 67167]]
targeted vulnerable or at-risk groups by selecting the highest
recommended values. In the RDI/DRV final rule, FDA was persuaded by the
comments to use a ``population coverage approach'' that did, in fact,
rely on the highest NAS RDA values from among those persons 4 or more
years of age (excluding pregnant or lactating women). For those
nutrients with ESADDI values presented as ranges, the agency attempted
to be consistent with this approach by selecting the highest range and
then using the midpoint of that range.
Use of the lowest point in the ESADDI range would be inconsistent
with the population coverage approach because it would set the RDI at a
value considered by the NAS as the minimum adequate dietary intake
level, not at a value that is targeted at vulnerable or at risk groups.
The agency recognizes the need for some caution, however, because NAS
has stated that the upper limits of the ESADDI ranges of intake should
not be habitually exceeded because the toxic level for many trace
elements may be only several times usual intake (Ref. 3, p. 7).
Therefore, in recognition of NAS' expressed concern and based on
the comments, FDA is persuaded to modify its method for determining
RDI's for nutrients with ESADDI's. While FDA will look first to the
midpoint of the highest range, if that value exceeds the upper limit of
the range for any ESADDI age group within the age range for which the
RDI will apply (i.e., adults and children 4 or more years), FDA will
select as the RDI the lowest upper level of the ESADDI ranges that are
less than the midpoint of the highest ESADDI range. For example, a
review of the 1989 ESADDI values for manganese shows a range from 1.5
to 2 milligrams (mg) for children 4 to 6 years of age, from 2 to 3 mg
for children 7 to 10 years of age, and from 2 to 5 mg for children 11
years of age through adults (Ref. 3). The agency proposed an RDI for
use on labels of foods intended for adults and children 4 or more years
of age of 3.5 mg for manganese. This value was the midpoint in the
highest ESADDI range (2 to 5 mg). Under this new method for determining
RDI's for nutrients with ESADDI's, FDA is setting the RDI value at 2 mg
since the midpoint of the highest ESADDI range (3.5 mg) exceeds the
upper limit for 4 to 6 year old children (2 mg).
Other nutrients affected by this modified method are chromium and
molybdenum. FDA proposed an RDI for chromium of 130 micrograms
(g). The upper limit of the ESADDI range for children 4 to 6
years of age is 120 g. Therefore, the agency is adopting an
RDI for chromium of 120 g, rather than 130 g.
Likewise, FDA proposed an RDI for molybdenum of 160 mg. The upper limit
of the ESADDI range for children 4 to 6 years of age is 75 mg.
Therefore, the agency is adopting an RDI for molybdenum of 75 mg,
rather than 160 mg. FDA has revised Sec. 101.9(c)(8)(iv) to reflect
these new values for manganese, chromium, and molybdenum.
FDA reiterates that the RDI's do not represent dietary goals for
individuals. Their purpose is to provide an overall population
reference value for use on the food label (55 FR 29476 at 29481). As
such, they may underrepresent or exceed the needs of particular
individuals, particularly for manganese and molybdenum. Nonetheless, on
a population basis FDA concludes that these values are appropriate.
IV. Issues Concerning Specific Nutrients
A. Fluoride
5. A number of form letters opposed establishing an RDI for
fluoride. Most of these comments did not provide any justification for
their position. Some comments stated that fluoride has been shown to be
a poison when ingested in very small quantities. These comments
associated the ingestion of minute quantities of fluoride with several
adverse health effects (e.g., dental fluorosis, gastrointestinal
disorders, allergies) but provided no data or information to support
this position. Another comment said that FDA should not establish an
RDI for fluoride because fluoride has never been identified as an
essential nutrient. This comment also expressed concern about
difficulties that would be encountered with an RDI for fluoride, given
the variability in dietary intake levels of this substance resulting
from the use or nonuse of fluoridated water as well as the
unintentional consumption of fluoride from mechanically deboned meat
and fluoridated toothpastes, and about the harm that might occur if
foods (including supplements) began fortifying with fluoride.
Another comment recommended that either fluoride be deleted from
the list of nutrients for which RDI's are established, or that the
agency establish an upper limit at 1.3 parts per million for added
fluoride in foods and dietary supplements because this level would be
consistent with the agency's proposal for the addition of fluoride to
bottled water.
A couple of comments suggested that an RDI of 3 mg for fluoride
will become a formulation target level for manufacturers. One comment
stated that manufacturers of vitamin-mineral supplements may
incorporate an amount of fluoride corresponding to 100 percent of the
RDI and reflect this fact on the nutrition label. The comment argued
that if such formulations are produced, the intake of 3 mg fluoride
from the vitamin-mineral supplement in addition to the intake of
fluoride from the diet, drinking water, and fluoridated dentifrices
would pose a risk of dental fluorosis for young children and might lead
to excess skeletal fluoride accumulation.
A professional association of pediatric dentists supported
establishing an RDI for fluoride for nutrition labeling purposes.
However, the comment stated that establishing the RDI at 3 mg would
place millions of children from infancy through 16 years at risk for
dental fluorosis. The comment urged FDA to establish the RDI for
fluoride at 1 mg because this level is scientifically proven to provide
significant anti-caries protection without increasing the risk of
dental fluorosis. The comment stated that levels above 1 mg have shown
no greater anti-caries protection, while greatly increasing the risk of
dental fluorosis in children. Another comment suggested that the lowest
fluoride ESADDI of 1.5 mg be adopted as the RDI because this level
would be compatible with the available food supply, and because
fluoride has about 70 percent availability for absorption resulting in
an absorbed level of 1 mg.
The agency rejects the argument that an RDI should not be
established because low levels of ingested fluoride (i.e., levels at or
below the proposed RDI) represent significant health risks and are
associated with a variety of toxicities. The U.S. Department of Health
and Human Services, in a report titled ``Review of Fluoride, Benefits
and Risks'' (Ref. 5), examined the literature on the adverse effects of
ingested fluoride. The report could not substantiate that there are
adverse health effects or toxicities associated with low level fluoride
exposure in normal individuals. In 1993, the Subcommittee on the Health
Effects of Ingested Fluoride of the NAS Committee on Toxicology (the
Subcommittee) examined possible adverse health effects associated with
fluoride intake including dental fluorosis; bone fracture;
reproductive, renal, gastrointestinal, and immunological toxicities;
genotoxicity; and carcinogenicity. The Subcommittee found that it could
not conclude that adverse health effects were associated with current
levels of fluoride intake resulting from ingestion of drinking water
with a maximum contaminant
[[Page 67168]]
level for fluoride at 4 mg/liter (as set by the U.S. Environmental
Protection Agency) and of other sources of fluoride, such as
toothpaste, mouth rinses, dietary fluoride supplements, and foods
prepared with fluoridated water (Ref. 6). Therefore, FDA rejects the
argument that the ingestion of low levels of fluoride is associated
with adverse health effects and toxicities.
FDA wishes to clarify that the proposed RDI for fluoride was not
intended to be a target level for supplementation. The agency stated in
the July 1990 proposal that the proposed RDI for fluoride was to be
used only in conjunction with a declaration of the level of fluoride
that is naturally present in a food or that results from the use of a
fluoridated water supply in the processing operation (55 FR 29476 at
29482). This issue was addressed again in the RDI/DRV final rule (58 FR
2206 at 2215).
FDA is persuaded, however, that an RDI should not be established
for fluoride because fluoride does not meet the first criterion
discussed previously for determining which nutrients should be
considered for RDI's, namely, that there is scientific consensus as to
the essentiality of the nutrient. Fluoride is a unique nutrient in that
an ESADDI for it was included in the 10th edition of ``Recommended
Dietary Allowances,'' yet in the text of that publication, the NAS
states that the contradictory results of published studies ``do not
justify a classification of fluorine as an essential element, according
to accepted standards'' despite the fact that it is considered a
beneficial element for humans because of its valuable effects on dental
health (Ref. 3, p. 235). In proposing an RDI for fluoride, the agency
mistakenly proposed an RDI for each nutrient listed in the NAS' RDA and
ESADDI tables. The agency failed to focus on the fact that, unlike the
other nutrients listed, the supporting text did not conclude that
fluoride is an essential nutrient.
In addition, FDA is persuaded by the comments that establishing an
RDI for fluoride would have limited usefulness in assisting consumers
to understand the nutritional significance of the amount of fluoride in
a serving of food in comparison to the total amount consumed per day
because the primary sources of fluoride (i.e., community fluoridated
water supplies, toothpastes, mouth rinses, and fluoride supplements)
will not bear nutrition labeling. Approximately 132 million Americans
receive drinking water that contains either naturally occurring or
added fluoride (Refs. 5 and 6). This water supply contributes
significantly to the total daily dietary intake of fluoride.
Additionally, fluoride supplements that may contribute significantly to
the total daily dietary intake of fluoride of persons consuming them
are regulated as drugs because of their intended use (to prevent
disease) and, therefore are not subject to the food labeling
regulations. Consequently, because the primary sources of dietary
fluoride are beyond the purview of nutrition labeling regulations, the
agency concludes that the declaration of percent DV of fluoride within
nutrition labeling on a limited number of foods that are relatively
minor sources of the nutrient will be of little use in assisting
consumers in maintaining healthy dietary practices.
Accordingly, because there is no consensus on the essentiality of
fluoride, and because declaration of a percent DV for this nutrient
would be of little value to consumers, the agency is removing fluoride
from the RDI list in Sec. 101.9(c)(8)(iv). Consistent with this action,
FDA is not including a reference to fluoride in Sec. 101.3(e)(4)(ii)
(21 CFR 101.3(e)(4)(ii)) and is removing a reference to it in
Sec. 101.36 (b)(3), (b)(3)(i), (b)(3)(ii), (b)(4), and (b)(4)(vi) (21
CFR 101.36(b)(3),(b)(3)(i), (b)(3)(ii), (b)(4), and (b)(4)(vi)).
B. Selenium and Chromium
6. Several form letters from consumers encouraged FDA to establish
RDI's for selenium and chromium that are higher than the proposed
levels because the proposed levels did not take prevention into
account. A few comments cited therapeutic benefits of high doses of
selenium and chromium.
The agency is not persuaded to establish higher RDI's for selenium
and chromium. As discussed in comment 3 of section III.B. of this
document, the NAS is considering expanding the RDA concept to include
reducing the risk of disease. If that occurs, the recommended levels of
some nutrients can be expected to rise. As stated previously, FDA
intends to work cooperatively with the NAS in its deliberations and to
propose to implement recommendations resulting from that process.
7. One comment recommended that consumers be cautioned against
ingesting levels of selenium in excess of the RDI to prevent potential
toxicity because the toxic level may only be a few times greater than
the average daily intake.
FDA does not agree with this comment. The 10th edition of the RDA
states that national food composition data in the United States
indicate that the adult mean dietary intake of selenium was 108
g per day between 1974 and 1982 (Ref. 3). Toxicities have not
been seen in persons who ingested less than 1 mg per day and generally
much more (Ref. 3). Such levels are many times the RDI being
established for selenium at 70 g. However, even if the agency
were persuaded of the need to consider a label warning statement about
selenium, it would be outside the scope of this rulemaking.
C. Chloride
8. One comment noted that the RDI for every nutrient should be
based on the most current scientific information available and should
rely on the 10th edition of ``Recommended Dietary Allowances.'' The
comment stated that the ESADDI for chloride (as well as for sodium and
potassium) was eliminated from the 10th edition because it was
difficult to justify. The comment contended that if FDA were to use the
ESADDI for chloride as the basis for an RDI, it would be disregarding
the best judgment of the scientific experts who establish the RDA's.
Furthermore, the comment stated that it would be unscientific to
establish an RDI for chloride in the absence of either an RDA or an
ESADDI. All other comments addressing this issue supported the proposed
RDI for chloride.
The agency is not persuaded that it is unscientific to establish an
RDI for chloride. There is a clear consensus that chloride meets the
first criterion discussed previously for determining which nutrients
should be considered for RDI's, that is, that it be essential. As
stated by the NAS, ``the principal electrolytes (sodium, potassium, and
chloride) * * * are essential dietary components, in that they must be
acquired from the diet * * *'' (Ref. 3, p. 247).
In regard to the second criterion (i.e., that there is scientific
agreement concerning the level at which the nutrient should be
consumed), in the case of chloride and the other electrolytes, there is
scientific agreement concerning the estimated minimum required level
for consumption (Ref. 3, table 11-1). While these levels are given in a
separate table from the RDA and ESADDI levels in the 10th edition of
the ``Recommended Dietary Allowances,'' there is nonetheless scientific
consensus in support of them.
Since the estimated minimum required levels for these nutrients
were based on estimates of only what is needed for growth and
replacement of obligatory losses (Ref. 3), and other RDI values
represent higher levels that are ``adequate to meet known nutrient
[[Page 67169]]
needs of practically all healthy persons,'' FDA looked to the 9th
edition of ``Recommended Dietary Allowances'' (Ref. 2), which provided
ESADDI values for chloride, in arriving at the value that the agency
first proposed as the RDI for chloride for adults and children 4 or
more years of age (i.e., 3,150 mg) (55 FR 29476 at 29482). In the RDI/
DRV final rule, FDA stated that, using the ``population coverage
approach,'' this value would raise to 3,400 mg. This value, which the
agency is adopting as the RDI for chloride, is 4.5 times the highest
estimated minimum required level of 750 mg specified in the 10th
edition of ``Recommended Dietary Allowances'' (Ref. 3, table 11-1).
This value is proportional to the DRV for sodium, 2,400 mg, which is
4.8 times its highest estimated minimum required level of 500 mg (Ref.
3, table 11-1). Because dietary chloride comes almost entirely from
sodium chloride, and because chloride loss tends to parallel losses of
sodium (Ref. 3, p. 258), it is logical that the RDI's for both of these
nutrients be in roughly the same proportion to their respective
estimated minimum required levels.
Potassium has a Daily Reference Value (DRV) of 3,500 mg which is
1.75 times its highest estimated minimum value. The agency points out
that it is not necessary that the label reference value for potassium
be in the same proportion to the estimated minimum required levels for
sodium or chloride because neither the intake nor obligatory losses for
potassium are in direct proportion to those of sodium and chloride
(Ref. 3, p. 256).
V. Determination of Nutritional Inferiority of Substitute Foods
The RDI/DRV final rule discussed the effect of the label reference
values on alternative products (e.g., reduced fat foods, reduced sodium
foods) formulated to achieve nutritional equivalency with their
traditional counterparts in accordance with Sec. 101.3(e)(4). The
agency acknowledged that an increase in the number of nutrients for
which RDI's are established would mean that efforts to obtain
nutritional equivalency may require the addition of additional
nutrients to some substitute foods (58 FR 2206 at 2225).
In recognition of this fact and because there are no listed sources
for selenium, fluoride, chromium, and molybdenum that can be used to
add these nutrients to foods (i.e., FDA has not authorized the use of
any food additives or listed any substances as generally recognized as
safe (GRAS) that are sources of supplementation of these four
nutrients), the agency proposed in Sec. 101.3(e)(4)(ii) in the January
1994 proposal that these nutrients need not be considered in
determining nutritional inferiority (59 FR 427).
9. One comment agreed with the agency's position on determinations
of nutritional inferiority. A few comments from the food industry
supported the proposal that selenium, fluoride, chromium, and
molybdenum not be considered in determining nutritional inferiority of
an substitute product. These comments expressed concern, however, that
the proposed inclusion of vitamin K in determinations of nutritional
inferiority will lead to the unnecessary fortification of existing
substitute foods and be a serious disincentive for manufacturers to
continue to develop and market ``healthier'' products. The comments
suggested that FDA include vitamin K among the nutrients that need not
be considered in determining nutritional inferiority.
The comments cited several factors in support of their suggestion,
including the lack of practical analytical methodology for determining
levels of vitamin K in food, the need to analyze current substitute
food products for vitamin K, the lack of a data base on vitamin K
content of foods, and the fact that there are a variety of technical
issues (e.g., compatibility with the product, ability to achieve
uniform distribution, stability during processing and storage, and
flavor maintenance) that would need to be resolved with respect to this
nutrient. The comments also stated that food manufacturers would be
required to seek appropriate ingredient sources for vitamin K,
determine product formulations and performance characteristics with the
new ingredients, and change product labels if the nutrient is added to
the modified products. A couple of comments requested guidance
regarding analytical methods for vitamin K. One comment stated that
current intakes of vitamin K appear to be adequate based on estimated
intakes and that vitamin K is synthesized by intestinal microflora.
FDA has carefully reviewed the comments but has concluded that
vitamin K should be considered in determining whether substitute foods
are nutritionally inferior to the foods for which they substitute. The
authority for the provisions of Sec. 101.3 on substitute foods is
section 403(c) of the Federal Food, Drug, and Cosmetic Act (the act)
(21 U.S.C. 343(c)). When this section of the act was adopted in 1938,
Congress was seeking to protect the consumer from the uninformed
purchase of an inferior substitute product that could be mistaken for a
traditional food product (38 FR 2138, January 19, 1973). In 1973, in
proposed regulations pertaining to ``imitation foods,'' the agency
noted that vast strides in food technology had taken place since
section 403(c) of the act was enacted, and that since 1938 many new
wholesome and nutritious food products had entered the marketplace,
some of which resembled and substituted for traditional foods (38 FR
2138). The agency stated that it was no longer the case that such
products were necessarily substandard compared to the traditional foods
for which they were substituted. However, FDA still believed that the
consumer must be protected from unwittingly purchasing a product that
is different from what he or she may reasonably expect (38 FR 2138).
FDA continues to believe that, as substitute products proliferate, it
is important to ensure that these products contain essential nutrients
in amounts consistent with the reference food, so that consumers can
continue to have confidence that a varied diet will supply adequate
nutrition. For this reason the agency disagrees that the consideration
of vitamin K in determining the status of substitute foods is
unnecessary.
Moreover, the agency disagrees that adequacy of intake is a
sufficient reason to make the addition of vitamin K optional in
substitute foods. Contrary to the comments, a recent analysis of data
from FDA's Total Diet Study indicates that 25 to 30 year old women and
men are consuming less than the current RDA for vitamin K (Ref. 10).
Although it is widely assumed that the daily vitamin K requirement is
met by bacterial synthesis of vitamin K in the form of menaquinones,
the relative contribution of this form of vitamin K remains uncertain
(Ref. 9), and recent studies underscore the importance of the dietary
intake of vitamin K (Refs. 7, 8, and 9). However, adequacy of intake of
a nutrient is not the issue in deciding whether the nutrient should be
considered in determining nutritional inferiority. The agency's
consistent view has been that, as stated previously, if a nutrient is
essential, it should be considered in such determinations unless there
are factors that demonstrate that it is inappropriate to do so.
No evidence was submitted in the comments to support the argument
that the addition of this nutrient to alternative products will be a
disincentive for the development and marketing of substitute foods, nor
were any examples presented that demonstrated that the fortification of
an appropriate food with vitamin K would be impossible. FDA appreciates
that manufacturers may need to reformulate
[[Page 67170]]
and relabel some products. However, the number of such products will
likely be very small because available databases reveal that many foods
do not contain measurable amounts of vitamin K (Refs. 11, 12, and 13).
A ``measurable amount'' of an essential nutrient is defined as 2
percent or more of the RDI for that nutrient per reference amount
customarily consumed (see Sec. 101.3(e)(4)(ii) as revised in this final
rule). FDA has stated that analysis is not needed for nutrients where
reliable databases or scientific knowledge establish that a nutrient is
not present in the product (58 FR 2079 at 2109). For example, current
databases (Refs. 11, 12, and 13) show that foods that consist primarily
of sugar and water (e.g., soft drinks, hard candies, honey), as well as
many oils, beverages, fruits, and fish, do not contain measurable
amounts of vitamin K, so there is no need to analyze such foods for it.
Conversely, green leafy vegetables, legumes, and certain oil products
(e.g., soybean oil), which are important sources of vitamin K, are not
generally reformulated as substitute foods. The primary categories of
substitute foods that may need to be reformulated or relabeled appear
to be those that substitute for foods containing eggs, milk, grains, or
those oils that contain vitamin K.
The agency is not persuaded by the comments that there is a lack of
analytical methods for vitamin K, or that technological barriers to
analyzing foods for vitamin K, or to adding vitamin K to foods, are
insurmountable. The Association of Official Analytical Chemists (AOAC)
International has authorized methods for analyzing vitamin K for infant
formula (Refs. 14 and 15). In addition, there are High Performance
Liquid Chromatographic methods available that are being used in
university and government laboratories in the United States for the
analysis of vitamin K in a wide, diverse portion of the food supply
(Refs. 16, 17, and 18). These methods could be utilized by commercial
laboratories if there was a demand for information on the vitamin K
content of food products other than infant formula. The agency believes
that such methods can be readily adapted for use by industry. However,
the agency considers it inadvisable to explicitly recommend a specific
analytical method for vitamin K. The applicability of a specific method
to products of different matrices varies. If FDA were to require the
use of a specific method, it could give the erroneous impression that
other methods that are more appropriate to a matrix, or that utilize
newer techniques, could not, or would not, be acceptable. In accordance
with Sec. 101.9(g)(2), FDA advises that manufacturers should select the
most appropriate method for the matrix involved.
The agency also is not persuaded by the comments that there is a
scarcity of ingredient sources of vitamin K. Vitamin K is required for
addition to infant formula as specified in part 107 (21 CFR part 107)
and is found in many dietary supplement products. These facts evidence
that ingredient sources are available to supply this nutrient.
In summary, the consideration of vitamin K in determinations of
nutritional inferiority is consistent with the original intention of
the imitation food provisions (i.e., Sec. 101.3(e)(4)) that consumers
be protected from the uninformed purchase of nutritionally inferior
substitute products. Because the lack of vitamin K would make a food
inferior to the one for which it substitutes, the agency concludes that
its addition should be required according to the criteria established
in Sec. 101.3(e)(4).
FDA appreciates that there are presently some gaps in knowledge
about the vitamin K content of foods and technological issues related
to its addition to foods. However, as noted previously, considerable
recent scientific activity has occurred and knowledge is evolving
rapidly (Refs. 10 through 17). Therefore, based on its review of
current data, FDA concludes that there are adequate analytical methods,
food composition data, and technological expertise available to support
consideration of vitamin K when determining nutritional inferiority of
substitute foods. FDA will continue to monitor the evolving scientific
knowledge regarding vitamin K content of food and will work with
industry on specific foods or issues, should problems arise.
10. Several comments noted that chloride and manganese are not of
public health concern and encouraged FDA to modify Sec. 101.3(e)(4)(ii)
to state that these minerals need not be considered when determining
nutritional inferiority. A few comments specifically noted that no
chloride deficiencies have been found except among infants fed chloride
deficient formulas as the sole source of the diet. These comments also
argued that requiring the inclusion of chloride in nutritional
inferiority determinations would jeopardize the development and
continued availability of certain reduced sodium foods. The comments
said that if this provision was not changed, manufacturers would be
required to add chloride to the modified products to compensate for the
amount originally contributed by salt, and that the addition of
chloride-containing salts would seriously affect the flavor and
acceptability of many such products.
As explained in the preceding comment, the requirement for a
determination of nutritional inferiority that is set forth in
Sec. 101.3(e)(4) is intended to ensure that alternative products are
nutritionally comparable to the foods for which they substitute. In
promulgating these regulations, FDA tentatively concluded that the term
``imitation'' should only be applied to substitute foods that are
nutritionally inferior to the foods for which they substitute (38 FR
2138). In response to comments received, FDA confirmed this view and
defined nutritional inferiority as any reduction in the content of an
essential vitamin or mineral or of protein that is present in a
``measurable amount,'' with ``measurable amount'' defined as 2 percent
or more of the U.S. RDA of that nutrient per serving (38 FR 20703,
August 2, 1973). Adequacy of intake of a particular nutrient or concern
over whether the nutrient was of public health concern (e.g., due to
widespread deficiencies) was not considered to be an issue in
determining whether a substitute food was nutritionally inferior to the
food for which it is a substitute.
Consistent with the agency's longstanding definition of nutritional
inferiority in Sec. 101.3(e)(4), FDA finds that the adequacy of current
dietary intakes of a nutrient is not determinative of the issue.
Therefore, the agency is not persuaded by this argument to drop
chloride and manganese from consideration in determining nutritional
inferiority. The agency concludes that the lack of manganese would make
a food inferior to the one which it replaces.
However, FDA is persuaded that a change in its position on
inclusion of chloride in determinations of nutritional inferiority is
warranted given its commitment to lower sodium intake, consistent with
the ``Dietary Guidelines for Americans'' (Refs. 19 and 20) and ``The
Surgeon General's Report on Nutrition and Health'' (Ref. 21). The
Surgeon General's report pointed to the need for moderation in sodium
consumption, not only because there is a benefit to persons whose blood
pressure rises with increased sodium intake, but also because there is
no biological marker for individual sodium sensitivity. The report
notes that there is no apparent harm to the general population from
moderate sodium restriction (Ref. 21, p. 13). Because salt (i.e.,
sodium chloride) is the major source of dietary chloride, the agency is
[[Page 67171]]
persuaded that it is contradictory to encourage a reduction in sodium
intake and yet to require that chloride be considered in determining
nutritional inferiority. When salt is removed from a product, chloride
follows.
Therefore, FDA concludes that it is reasonable to delete the
requirement for inclusion of chloride in the determination of
nutritional inferiority. The agency points out, however, that chloride
must be included in total replacement formulas, medical foods, and
infant formula, as needed, to ensure that there are adequate levels of
this essential nutrient in the diet of persons consuming a limited
variety of foods.
Accordingly, the agency is retaining the requirement in
Sec. 101.3(e)(4)(ii) that manganese, but not chloride, be included in
determinations of nutritional inferiority in substitute foods.
VI. Age/Sex Groupings
In the January 1994 proposal, FDA pointed out that in following the
provisions of the DS act and retaining the label reference values in
Sec. 101.9(c)(7)(iv)(1992), the agency did not adopt label reference
values for use on foods that are represented or purported to be for use
by infants, children under 4 years of age, or pregnant or lactating
women (59 FR 427 at 429). Given the continuing questions about how to
arrive at such values, FDA deferred action on this issue. The agency
stated that it intended to address the issue of RDI's for the various
age groups in a future rulemaking (59 FR 427 at 430). It also stated
that, until such rulemaking is completed, labels of dietary supplements
of vitamins or minerals that are intended for these specific groups and
that are regulated under Sec. 101.36 may continue to specify the mg or
g amounts of vitamin K, selenium, manganese, chromium,
molybdenum, and chloride with an asterisk in the percent DV column (59
FR 427 at 430). The asterisk would refer to a footnote stating ``Daily
Value not established.'' However, because quantitative amounts are not
listed for vitamins and minerals on labels of conventional foods, only
the percent DV, FDA noted that the subject nutrients may not be
declared on labels of foods in conventional food form that are
represented or purported to be for use by infants, children less than 4
years of age, or pregnant or lactating women until such time as RDI's
are established for such groups. The agency requested comment on how to
list the subject nutrients on the labels of conventional foods that are
represented or purport to be for use by infants, children under 4, and
pregnant and lactating women (59 FR 427 at 430).
11. A couple of comments that supported establishing RDI's for the
seven subject nutrients suggested that the agency establish RDI's for
infants, children under 4 years of age, and pregnant or lactating women
by using the same quantitative reasoning that it used to determine
RDI's for children age 4 and above.
FDA advises that it intends to propose to establish RDI's for
infants, children less than 4 years, and pregnant and lactating women
in the near future. In that proposal, the agency intends to address all
nutrients for which RDI's have been established for adults and children
4 or more years of age.
12. One manufacturer of dietary supplement products suggested that
consumers of conventional foods represented for or purported to be for
use by infants, children less than 4 years of age, or pregnant or
lactating women would be best served by allowing quantitative
information (i.e., mg or g amounts) of vitamin K, selenium,
manganese, chromium, molybdenum, and chloride to be listed in nutrition
labeling of such products, with an accompanying asterisk and footnote
that a DV has not been established, until such time as RDI's are
established for those groups. The comment stated that while this
information might not be all that meaningful to the average consumer,
there are a significant number of sophisticated people who could put
this information to good use in making intelligent food choices.
FDA has considered the suggested change and finds that while there
may be merit to it, it would necessitate major changes in the nutrition
label of such products that were not foreshadowed in the proposed rule.
The agency had discussed simply the use of asterisks with the footnote
stating that a DV had not been established (59 FR 427 at 430), but the
agency received no support in the comments for that modification. In
accordance with the Administrative Procedures Act, it would be
necessary to propose a change in Sec. 101.9 to allow quantitative
amounts by weight of vitamin K, selenium, manganese, chromium,
molybdenum, and chloride to be declared in nutrition labeling of
conventional foods represented or purported for use by infants,
children under 4, and pregnant or lactating women in advance of the
establishment of RDI's for those groups. Given that the agency intends
to propose to establish RDI's for the additional groups, that action
can be accomplished as expeditiously as the one suggested by this
comment, thereby negating the need for such additional rulemaking.
VII. Conforming Amendments
A. Section 101.3(e)(4)
As a result of questions that FDA received since the publication of
the January 6, 1993 final rules, the agency has come to recognize that
it inadvertently deleted the term ``per average or usual serving'' from
Sec. 101.3(e)(4)(ii) when it amended that paragraph as a part of the
RDI/DRV final rule (58 FR 2206). Section 101.3(e)(4)(ii) defines a
measurable amount of an essential nutrient in a food for the purposes
of determining nutritional inferiority. FDA is correcting that error in
this final rule.
However, to make this paragraph consistent with other regulations
that FDA issued in implementing the 1990 amendments (e.g., serving size
and nutrient content claim regulations in 21 CFR 101.12 and 101.13,
respectively), the term ``per reference amount customarily consumed''
should be used instead of ``per average or usual serving'' to ensure
that the comparison of products reflects the true characteristics of
the product, not the container size. This concept underlies FDA's
consideration of claims characterizing the levels of nutrients in foods
(58 FR 2302 at 2314). FDA is not replacing the accompanying term ``per
average or usual portion'' because FDA concluded in the final rule on
serving size that the term ``portion'' is considered to be
interchangeable with ``serving'' size and, therefore, deleted that term
from the regulations (58 FR 2229 at 2232).
Accordingly, Sec. 101.3(e)(4)(ii) is corrected to read as follows:
For the purpose of this section, a measurable amount of an
essential nutrient in a food shall be considered to be 2 percent or
more of the Daily Reference Value (DRV) of protein listed under
Sec. 101.9(c)(7)(iii) per reference amount customarily consumed and
of potassium listed under Sec. 101.9(c)(9) per reference amount
customarily consumed and 2 percent or more of the Reference Daily
Intake (RDI) of any vitamin or mineral listed under
Sec. 101.9(c)(8)(iv) per reference amount customarily consumed
except that selenium, molybdenum, chromium, and chloride need not be
considered.
B. Section 101.36
As noted in the proposed rule (59 FR 427 at 430), the amendments to
the nutrition labeling regulations that FDA is making in this final
rule necessitate that FDA revise Secs. 101.36 (b)(3), (b)(4), and
(b)(4)(vi).
Current Sec. 101.36(b)(3) states that all nutrients in
Sec. 101.9(c) that are present in
[[Page 67172]]
a dietary supplement in quantitative amounts by weight that exceed the
amount that can be declared as zero in Sec. 101.9(c) must be declared
in nutrition labeling. This section goes on to state that those
nutrients that are not present, or that are present in amounts that
would be declared as zero, shall not be declared. The section states,
in addition, that potassium, vitamin K, chloride, chromium, fluoride,
manganese, molybdenum, and selenium shall be declared, except when
present in quantitative amounts by weight that allow a declaration of
zero.
FDA is modifying Sec. 101.36(b)(3) by removing all reference to
vitamin K, chloride, chromium, manganese, molybdenum, and selenium.
Because these nutrients are now included in Sec. 101.9(c)(8)(iv), they
can be listed in nutrition labeling without the need for a specific
provision that authorizes such listing. As discussed under comment 5 of
section IV.A of this document, the agency is also modifying this
section to remove all references to fluoride to reflect the agency's
decision not to establish an RDI for this nutrient.
Current Sec. 101.36(b)(4) states that the nutrition label shall
contain a listing of the percent of the DV (i.e., the percent of the
RDI as established in Sec. 101.9(c)(8)(iv) or DRV as established in
Sec. 101.9(c)(9)), where appropriate, of all nutrients listed in the
nutrition label, except that the percent DV for protein may be omitted
as provided in Sec. 101.9(c)(7), and that no percent shall be given for
sugars, vitamin K, chloride, chromium, fluoride, manganese, molybdenum,
selenium.
FDA is modifying Sec. 101.36(b)(4) by limiting the exception that
no percent DV shall be given for vitamin K, selenium, manganese,
chromium, molybdenum, and chloride to only products represented or
purported for use by infants, children less than 4 years of age, and
pregnant or lactating women. Because RDI's are now established for
these nutrients for adults and children 4 or more years of age, the
percent DV of these nutrients can be calculated on products represented
or purported for use by that group. Because FDA is not adopting an RDI
for fluoride, revised Sec. 101.36(b)(4) does not reference this
nutrient.
Current Sec. 101.36(b)(4)(vi) states that when no percent DV is
given for sugars, vitamin K, chloride, chromium, fluoride, manganese,
molybdenum, or selenium, an asterisk shall be placed in the ``% Daily
Value'' column that shall refer to another asterisk that is placed at
the bottom of the nutrition label that is followed by the statement
``Daily Value not established.'' FDA is modifying this regulation to
state that when no percent is given for sugars, or, for labels of
dietary supplements of vitamins and minerals that are represented or
purported to be for use by infants, children less than 4 years of age,
or pregnant or lactating women, when no percent is given for vitamin K,
selenium, manganese, chromium, molybdenum, or chloride, an asterisk
shall be placed in the ``Percent Daily Value'' column that shall refer
to another asterisk that is placed at the bottom of the nutrition label
and followed by the statement ``Daily Value not established.'' This
action is needed until the rulemaking (discussed in comment 11 of
section VI of this document) to establish RDI's for infants, children
less than 4 years of age, and pregnant or lactating women is complete.
While there are no RDI's codified for these groups for any nutrients,
in its June 18, 1993, proposal pertaining to nutrition labeling of
dietary supplements (58 FR 33715 at 33721), FDA encouraged
manufacturers of products represented or purported to be for use by
infants, children less than 4 years of age, or pregnant or lactating
women to use label reference values for these groups given in the
preamble of the RDI/DRV final rule on January 6, 1993 (58 FR 2206 at
2213). Since the table of label reference values at the bottom of page
2213 in that document addresses only the vitamins and minerals in
current Sec. 101.9(c)(8)(iv), there are no values for vitamin K,
selenium, manganese, chromium, molybdenum, or chloride that can be used
to calculate the percent DV of these nutrients on labels of products
represented or purported to be for use by infants, children less than 4
years of age, or pregnant or lactating women at this time.
Again, because FDA is not adopting an RDI for fluoride, revised
Sec. 101.36(b)(4)(vi) does not reference that nutrient.
It should be noted that, while these conforming amendments to
Sec. 101.36 modify that current regulation, they will be superseded by
any final regulations resulting from the proposed rule published in a
companion document in this issue of the Federal Register entitled
``Food Labeling: Statement of Identity, Nutrition Labeling and
Ingredient Labeling of Dietary Supplements.''
VIII. Other Provisions
FDA did not receive any comments that dealt with, or objected to,
the other provisions of the proposal (e.g., units of measure for
calcium, phosphorus, biotin, and folate and the conforming amendments).
In the absence of any basis for doing otherwise, FDA is adopting those
provisions as proposed.
IX. Effective Date
13. Several comments suggested that FDA reevaluate the effective
date discussed in the proposed rule. These comments suggested a longer
effective date because the proposed inclusion of vitamin K, chloride,
and manganese in nutritional equivalency determinations would require
that the composition of virtually all existing substitute foods be
reevaluated. One comment suggested a 3-year extension of the effective
date because food manufacturers are just completing a massive
relabeling effort of all packaged foods in the marketplace. One comment
from a printing company stated that it would have to change 2,600
labels very shortly if the effective date was adopted as proposed. The
comment noted that new labels for dietary supplements will use an
asterisk referring to the statement ``No Daily Value established'' for
the subject nutrients. The comment stated that if the final rule did
not issue by June 1994, the company would not be able to implement the
new RDI values with the label changes it was making in response to the
1990 amendments. The comment requested that the final rule issue by
June 1994 or establish an effective date after July 1996. Another
comment suggested that establishing the effective date after July 1996
would reduce the impact of making two label changes to the same label.
The comment noted that it is impossible for producers to undertake
analysis, reformulation and relabeling of all the alternative products
affected by this proposal within the 30 days allowed between
publication of the final rule and the effective date.
One comment requested that the final rule on RDI's become effective
30 days after its publication with the clarification that the values
may be used at that time but are not mandatory on the labels of food or
dietary supplements until at least July 1, 1996, 1 year from the
implementation deadline for the food labeling regulations for dietary
supplements.
FDA points out that it published a notice on February 9, 1995 (60
FR 7711), indicating it will not enforce its regulations on nutrition
labeling and nutrient content claims for dietary supplements until
after December 31, 1996. Therefore, the July 1, 1995, date is not
longer determinative. This delay allows FDA time to modify its
regulations to respond to the DSHEA.
The agency is persuaded by the comments that it is necessary to
reconsider the amount of time that it
[[Page 67173]]
may take the food industry to implement these new rules. The proposed
30-day effective date was intended to permit the inclusion of the
subject nutrients in nutrition labeling as quickly as possible. The
agency believes that many companies want, and will be able, to
implement these rules quickly, while others will need more time to make
the necessary changes.
Accordingly, while companies who wish to add vitamin K, selenium,
manganese, chromium, molybdenum, and chloride to the nutrition labeling
on their products may do so immediately, FDA is changing the effective
date to January 1, 1997, in recognition of the analytical work and
formulation changes that may be needed with some food products to come
into compliance with revised Secs. 101.3(e)(4)(ii) and 101.9(c)(8)(iv).
This effective date provides approximately 12 months for industry to
implement the subject changes, sufficient time to accomplish an orderly
and economical adjustment to the subject rules. It is also consistent
with the effective date established in the DSHEA and proposed in the
document addressing nutrition labeling of dietary supplements published
elsewhere in this issue of the Federal Register. The agency encourages
industry to comply with these new rules earlier than the effective date
wherever it is feasible to do so.
X. Economic Impact
FDA has examined the economic implications of the final rule as
required by Executive Order 12866 and the Regulatory Flexibility Act
(Pub. L. 96-354). Executive Order 12866 directs agencies to assess all
costs and benefits of available regulatory alternatives and, when
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects; distributive impacts; and equity). The
Regulatory Flexibility Act requires that agencies analyze options for
regulatory relief for small businesses. FDA finds that this final rule
is not a significant rule as defined by Executive Order 12866. In
accordance with the Regulatory Flexibility Act, the agency certifies
that the final rule will not have a significant impact on a substantial
number of small businesses.
A. Costs
14. FDA received several comments rejecting the agency's analysis
of the costs of this regulation as proposed. One comment stated that
the cost of evaluating the manganese, vitamin K, and chloride content
of substitute foods and relabeling affected products would exceed the
agency's estimates. Another comment explained that a lack of a
practical analytical method for vitamin K in food systems and other
technical issues would lead to major costs.
FDA agrees that including manganese and vitamin K in the
consideration of nutritional equivalency will lead to increased costs
of analyzing and relabeling substitute products. Because FDA has
reevaluated its decision regarding chloride, there will be no increased
costs attributable to that substance.
As stated previously in this document, analysis is not needed for
nutrients where reliable data bases establish, or scientific knowledge
establishes, that a nutrient is not present in the product. Current
data bases show that foods that consist primarily of sugar and water,
as well as many oils, beverages, fruits, and fish, do not contain
measurable amounts of vitamin K, so there is no need to analyze for it
in products substituting for such foods. Conversely, green leafy
vegetables, legumes, and certain oil products, which are major sources
of vitamin K, are not generally reformulated as substitute foods.
Therefore, FDA expects that only a limited number of products will
require analysis for vitamin K. Likewise, manganese is prevalent in
cereal grains, green leafy vegetables, and tea. Therefore, FDA predicts
that only a limited number of products will require analysis for
manganese. However, when there is a reasonable expectation that either
nutrient occurs in the food, an analysis for the nutrient will be
necessary, and the manufacturers of those products will bear the cost
of testing for the nutrient.
FDA does not have an estimate of the cost of testing for vitamin K
in foods other than infant formulas or dietary supplements, although
such testing has been performed in university settings. The cost of
testing for vitamin K in infant formulas or dietary supplements is
approximately $187 per product (Ref. 22). The cost of testing for
manganese is approximately $34 per product (Ref. 23). While FDA cannot
determine the exact cost of testing for these nutrients because the
total number of products that must be tested is unknown, the cost per
test and the fact that vitamin K and manganese levels will be
significant in only a small number of foods lead the agency to conclude
that the costs that will be engendered by this final rule will not
approach the levels that represent a significant rule.
15. Several comments objected to the economic analysis on the basis
that the short lead time of the proposed effective date would lead to
increased costs. One comment objected to the proposed effective date
given due to the impossibility of evaluating foods for nutritional
equivalency and relabeling of affected products within the 30-day
effective date proposed. Another comment stated that extending the
effective date would reduce the impact of making two label changes.
FDA agrees that the proposed effective date would lead to increased
costs. However, because FDA is extending the effective date to give
firms approximately 12 months, th
FR Doc. 95-31197 Food Labeling: Reference Daily Intakes
e analysis need not be changed in
response to these comments.
B. Benefits
This regulation allows manufacturers to declare certain nutrients
within the nutrition panel and to make content claims about those
nutrients. This regulation will create benefits to the extent that the
additional information allowed on labels will help consumers make
healthy dietary choices.
This regulation also establishes requirements for determining
nutritional inferiority such that substitute products must contain
equivalent amounts of vitamin K and manganese as the products for which
they substitute.
There are currently no widespread deficiencies of either vitamin K
or manganese in the United States. Although it is theoretically
possible that additional deficiencies could occur if enough consumers
switch to substitute products containing inferior amounts of the
nutrient, the likelihood of widespread deficiencies is small because
the number of foods containing significant amounts of the nutrients
that could be substituted is small. Also, it is unlikely that the
deficiencies that might occur would result in anything other than minor
effects. Therefore, the health benefits of including vitamin K and
manganese in tests for nutritional equivalency are small and
unmeasurable.
C. Summary
The agency has examined the economic impact of this final rule and
has determined that it is not significant as defined by Executive Order
12866.
XI. Environmental Impact
The agency has previously considered the environmental effects of
this rule as announced in the proposed rule (59 FR 427). At that time,
the agency determined under 21 CFR 25.24(a)(11) that this action is of
a type that does not individually or cumulatively have a significant
effect on the human
[[Page 67174]]
environment. No new information or comments have been received that
would affect the agency's previous determination that there is no
significant impact on the human environment and that an environmental
impact statement is not required.
XII. Paperwork Reduction Act
This final rule contains no information collection or recordkeeping
requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
XIII. References
The following references have been placed on display in the Dockets
Management Branch (address above) and may be seen by interested persons
between 9 a.m. and 4 p.m., Monday through Friday.
1. Food and Nutrition Board, Division of Biology and
Agriculture, National Research Council, ``Recommended Dietary
Allowances,'' 7th ed., publication 1694, Printing and Publishing
Office, NAS, Washington, DC, 1968.
2. Committee on Dietary Allowances, Food and Nutrition Board,
Commission on Life Sciences, National Research Council,
``Recommended Dietary Allowances,'' 9th revised ed., Washington, DC,
National Academy Press, 1980.
3. Subcommittee on the 10th Edition of the RDA's, Food and
Nutrition Board, Commission on Life Sciences, National Research
Council, ``Recommended Dietary Allowances,'' 10th revised ed.,
Washington, DC, National Academy Press, 1989.
4. Food and Nutrition Board, Institute of Medicine, National
Academy of Sciences, ``How Should the Recommended Dietary Allowances
Be Revised,'' Washington, DC, National Academy Press, 1994.
5. Ad Hoc Subcommittee on Fluoride of the Committee to
Coordinate Environmental Health and Related Programs, Public Health
Service, Department of Health and Human Services, ``Review of
Fluoride Benefits and Risks,'' 1991.
6. Subcommittee on Health Effects of Ingested Fluoride,
Committee on Toxicology, Board on Environmental Studies and
Toxicology, Commission on Life Sciences, National Research Council,
National Academy Press, ``Health Effects of Ingested Fluoride,''
Washington, DC, 1993.
7. Suttie, J. W., ``Vitamin K and Human Nutrition,'' Journal of
the American Dietetic Association, 92585-92590, 1992.
8. Suttie, J. W., L. L. Mummah- Schendel, D. V. Shah, B. J.
Lyle, J. L. Greger, ``Vitamin K Deficiency from Dietary Vitamin K
Restriction in Humans,'' American Journal of Clinical Nutrition,
47475-47480, 1988.
9. Ferland, G., J. A. Sadowski, M. O'Brien, ``Dietary Induced
Subclinical Vitamin K Deficiency in Normal Human Subjects,'' Journal
of Agricultural and Food Chemistry, 911761-911768, 1993.
10. Booth, S. L., J. A. T. Pennington, J. A. Sadowski, ``Food
Sources and Dietary Intakes of Phylloquinone,'' unpublished
manuscript.
11. United States Department of Agriculture, Human Nutrition
Information Service, Nutrient Data Research Branch, Nutrition
Monitoring Division, ``Provisional Table on the Vitamin K Content of
Foods,'' revised June 1990.
12. Booth, S. L., J. A. Sadowski, J. L. Weirauch, G. Ferland,
``Vitamin K1 (Phylloquinone) Content of Foods A Provisional
Table,'' Journal of Food Composition and Analysis, 6:109-120, 1993.
13. Pennington, J. A. T., ``Bowes & Church, Food Values of
Portions Commonly Used, Sixteenth Edition.'' J. B. Lippincott Co.,
p. 421, 1994.
14. Tanner, J. T., S. A. Barnett, and M. K. Mountford,
``Analysis of Milk-Based Infant Formula. Phase IV. Iodide, Linoleic
Acid, and Vitamins D and K: U.S. Food and Drug Administration-Infant
Formula Council Collaborative Study,'' Journal of the Association of
Official Analytical Chemists International, 76:1042-1056, 1993.
15. Bueno, P. M., and M. C. Villabobos, Reverse Phase High
Pressure Liquid Chromatographic Determination of Vitamin K1 in
Infant Formulas, Journal of the Association of Official Analytical
Chemists, 66:1063-1066, 1983.
16. Booth S. L., K. W. Davidson, J. A. Sadowski, ``Evaluation of
an HPLC Method for the Determination of Phylloquinone (Vitamin
K1) in Various Food Matrices,'' Journal of Agricultural and
Food Chemistry, 42:295-300, 1994.
17. Haroon, Y., M. J. Shearer, S. Rahim, W. G. Gunn, G.
McEnergy, P. Barkhan, ``The Content of Phylloquinone (Vitamin
K1) in Human Milk, Cow's Milk and Infant Formula Foods
Determined by High-Performance Liquid Chromatography'', Journal of
Nutrition 112:1105-1117, 1982.
18. Ferland, G., J. A. Sadowski, ``Vitamin K1
(Phylloquinone) Content of Green Vegetables Effects of Plant
Maturation and Geographical Growth Location,'' Journal of
Agricultural and Food Chemistry, 40:1874- 1877, 1992.
19. U.S. Department of Agriculture and U.S. Department of Health
and Human Services, ``Nutrition and Your Health, Dietary Guidelines
for Americans,'' Washington, DC, Home and Garden Bulletin, No. 232,
U.S. Government Printing Office, 1990.
20. U.S. Department of Agriculture and U.S. Department of Health
and Human Services, ``Nutrition and Your Health, Dietary Guidelines
for Americans,'' Washington, DC, Home and Garden Bulletin, No. 232,
Second Edition, U.S. Government Printing Office, 1985.
21. U.S. Department of Health and Human Services, Public Health
Service, ``The Surgeon General's Report on Nutrition and Health,''
Washington, DC, DHHS (PHS) Publication No. 88-50210, U.S. Government
Printing Office, p. 13, 1988.
22. Bush, Laina M., memorandum of telephone conversation with
Wayne Ellefson, Hazelton Laboratories, April 23, 1995.
23. Bush, Laina M., memorandum of telephone conversation with
John McKay, Lancaster Laboratories, January 11, 1995.
List of Subjects in 21 CFR Part 101
Food labeling, Nutrition, Reporting and recordkeeping requirements.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs, 21 CFR part
101 is amended as follows:
PART 101--FOOD LABELING
1. The authority citation for 21 CFR part 101 is revised to read as
follows:
Authority: Secs. 4, 5, 6 of the Fair Packaging and Labeling Act
(15 U.S.C. 1453, 1454, 1455); secs. 201, 301, 402, 403, 409, 701 of
the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321, 331, 342,
343, 348, 371).
2. Section 101.3 is amended by revising paragraph (e)(4)(ii) to
read as follows:
Sec. 101.3 Identity labeling of food in packaged form.
* * * * *
(e) * * *
(4) * * *
(ii) For the purpose of this section, a measurable amount of an
essential nutrient in a food shall be considered to be 2 percent or
more of the Daily Reference Value (DRV) of protein listed under
Sec. 101.9(c)(7)(iii) and of potassium listed under Sec. 101.9(c)(9)
per reference amount customarily consumed and 2 percent or more of the
Reference Daily Intake (RDI) of any vitamin or mineral listed under
Sec. 101.9(c)(8)(iv) per reference amount customarily consumed, except
that selenium, molybdenum, chromium, and chloride need not be
considered.
* * * * *
3. Section 101.9 is amended by revising paragraph (c)(8)(iv) to
read as follows:
Sec. 101.9 Nutrition labeling of food.
* * * * *
(c) * * *
(8) * * *
(iv) The following RDI's and nomenclature are established for the
following vitamins and minerals which are essential in human nutrition:
Vitamin A, 5,000 International Units
Vitamin C, 60 milligrams
Calcium, 1,000 milligrams
Iron, 18 milligrams
Vitamin D, 400 International Units
Vitamin E, 30 International Units
Vitamin K, 80 micrograms
Thiamin, 1.5 milligrams
Riboflavin, 1.7 milligrams
Niacin, 20 milligrams
Vitamin B6, 2.0 milligrams
Folate, 400 micrograms
Vitamin B12, 6 micrograms
Biotin, 300 micrograms
Pantothenic acid, 10 milligrams
Phosphorus, 1,000 milligrams
Iodine, 150 micrograms
Magnesium, 400 milligrams
Zinc, 15 milligrams
[[Page 67175]]
Selenium, 70 micrograms
Copper, 2.0 milligrams
Manganese, 2.0 milligrams
Chromium, 120 micrograms
Molybdenum, 75 micrograms
Chloride, 3,400 milligrams
* * * * *
4. Section 101.36 is amended by revising the introductory text of
paragraph (b)(3), paragraphs (b)(3)(i), (b)(3)(ii), the introductory
text of paragraph (b)(4), and paragraphs (b)(4)(vi) to read as follows:
Sec. 101.36 Nutrition labeling of dietary supplements of vitamins or
minerals.
* * * * *
(b) * * *
(3) A listing of all nutrients required in Sec. 101.9(c) that are
present in the dietary supplement in quantitative amounts by weight
that exceed the amount that can be declared as zero in Sec. 101.9(c).
Those nutrients that are not present, or present in amounts that would
be declared as zero, shall not be declared. In addition, potassium
shall be declared except when present in quantitative amounts by weight
that allow a declaration of zero. The name of each nutrient listed
shall be immediately followed by the quantitative amount by weight of
the nutrient. Nutrient names and quantitative amounts shall be
presented in a column under the heading ``Amount Per Serving'' and
aligned on the left side of the nutrition label. The heading ``Amount
Per Serving'' shall be separated from other information on the label by
a bar above and beneath it, except that when calories are listed, the
bar shall be placed beneath the calorie declaration. When the serving
size of the product is one unit (e.g., 1 tablet), a heading consistent
with the declaration of serving size, such as ``Amount per Tablet'' or
``Each Tablet Contains,'' may be used in place of the heading ``Amount
per Serving.'' Other appropriate terms, such as capsule, packet, or
teaspoonful, may be used in place of the term ``Serving.''
(i) These amounts shall be expressed in the increments specified in
Sec. 101.9(c), except that the amounts of vitamins and minerals,
excluding sodium and potassium, declared on the nutrition label shall
be the actual amount of the vitamin or mineral included in the dietary
supplement, using the units of measure and the levels of significance
given in Sec. 101.9(c). In declaring the amounts of vitamins and
minerals, zeros following decimal points may be dropped, and additional
levels of significance may be used when the number of decimal places
indicated is not sufficient to express lower amounts (e.g., the RDI for
copper is given in whole milligrams, but the quantitative amount may be
declared in tenths of a milligram). Amounts for chloride and manganese
shall be expressed in mg, and, amounts for chromium, molybdenum,
selenium, and vitamin K shall be expressed in micrograms. These values
shall be expressed in whole numbers.
(ii) Nutrients that are present shall be listed in the order
specified in Sec. 101.9(c); except that, when present, vitamin K shall
follow vitamin E; calcium and iron shall follow pantothenic acid;
selenium shall follow zinc; and manganese, chromium, molybdenum,
chloride, sodium, and potassium shall follow copper. This results in
the following order for vitamins and minerals: Vitamin A, vitamin C,
vitamin D, vitamin E, vitamin K, thiamin, riboflavin, niacin, vitamin
B6, folate, vitamin B12, biotin, pantothenic acid, calcium, iron,
phosphorus, iodine, magnesium, zinc, selenium, copper, manganese,
chromium, molybdenum, chloride, sodium, and potassium. A bar shall
separate the last nutrient to be listed from the bottom of the
nutrition label, as shown in the sample labels in paragraph (c)(9) of
this section.
* * * * *
(4) A listing of the percent of the Daily Value (i.e., the percent
of the RDI as established in Sec. 101.9(c)(8)(iv) or DRV as established
in Sec. 101.9(c)(9)), where appropriate, of all nutrients listed in the
nutrition label, except that the percent for protein may be omitted as
provided in Sec. 101.9(c)(7), no percent shall be given for sugars, and
for labels of dietary supplements of vitamins and minerals that are
represented or purported to be for use by infants, children less than 4
years of age, or pregnant or lactating women, no percent shall be given
for vitamin K, selenium, manganese, chromium, molybdenum, or chloride.
This information shall be presented in one column aligned under the
heading of ``% Daily Value'' and to the right of the column of nutrient
names and amounts. The headings ``% Daily Value (DV),'' ``% DV,''
``Percent Daily Value,'' or ``Percent DV'' may be substituted for ``%
Daily Value.'' The heading ``% Daily Value'' shall be placed on the
same line as the heading ``Amount per Serving'' or placed beneath this
heading and the bar underneath it, except that ``% Daily Value'' shall
be placed beneath this bar when calorie information is required to be
declared. Calorie information shall be placed beneath ``Amount Per
Serving'' and above the bar.
* * * * *
(vi) When no percent is given for sugars, or for labels of dietary
supplements of vitamins and minerals that are represented or purported
to be for use by infants, children less than 4 years of age, or
pregnant or lactating women, when no percent is given for vitamin K,
selenium, manganese, chromium, molybdenum, or chloride, an asterisk
shall be placed in the ``Percent Daily Value'' column that shall refer
to another asterisk that is placed at the bottom of the nutrition label
and followed by the statement ``Daily Value not established.''
* * * * *
Dated: September 26, 1995.
William B. Schultz
Deputy Commissioner for Policy.
[FR Doc. 95-31197 Filed 12-27-95; 8:45 am]
BILLING CODE 4160-01-P
Complete official Federal Register PDF
FR Doc. 95-31020 Community Development Corporation and Project Investments
[Federal Register Volume 60, Number 249 (Thursday, December 28, 1995)]
[Rules and Regulations]
[Pages 67049-67050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-31020]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 /
Rules and Regulations
[[Page 67049]]
DEPARTMENT OF THE TREASURY
Office of the Comptroller of the Currency
12 CFR Part 24
[Docket No. 95-33]
RIN 1557-AB46
Community Development Corporation and Project Investments
AGENCY: Office of the Comptroller of the Currency, Treasury.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Office of the Comptroller of the Currency (OCC) is
amending its Community Development Corporation and Project Investments
regulation. This final rule removes a provision that requires a bank to
reinvest profits, dividends, and other distributions from community
development investments in activities that promote the public welfare.
The purpose of the final rule is to encourage public welfare
investments by national banks.
EFFECTIVE DATE: January 1, 1996.
FOR FURTHER INFORMATION CONTACT: Karen Bellesi, Program Coordinator,
Community Development Investments, Community Development Division, 202/
874-4930; Michele Meyer, Attorney, Community and Consumer Law Division,
202/874-5750; or Karen McSweeney, Attorney, Legislative and Regulatory
Activities Division, 202/874-5090, Office of the Comptroller of the
Currency, 250 E Street, SW., Washington, DC 20219.
SUPPLEMENTARY INFORMATION:
Introduction
The OCC is currently reviewing 12 CFR part 24 as a component of its
Regulation Review Program. As part of this review, on October 26, 1995
(60 FR 54819), the OCC published a notice of proposed rulemaking (NPRM)
to remove one provision from part 24. Another NPRM proposing more
comprehensive changes to other part 24 provisions is published
elsewhere in this issue of the Federal Register.
Part 24 permits public welfare investments by national banks,
subject to certain limitations. Currently, part 24 requires a bank to
reinvest the profits, dividends, and other distributions from its
equity and debt investments in a community development corporation
(CDC) or community development (CD) project in activities that
primarily promote the public welfare. This final rule removes the
reinvestment requirement from part 24.
Background
Under 12 U.S.C. 24 (Eleventh) (section 24 (Eleventh)), a national
bank is authorized to make investments designed primarily to promote
the public welfare, including the welfare of low- and moderate-income
families and communities (such as through the provision of housing,
services, or jobs) consistent with safe and sound banking
practices.1 The OCC issued part 24 on December 27, 1993 (58 FR
68464), to establish various requirements for these permissible public
welfare investments.
\1\ Paragraph Eleventh was added to 12 U.S.C. 24 by the
Depository Institutions Disaster Relief Act of 1992, enacted on
October 23, 1992. Pub. L. 102-485, Section 6(a), 106 Stat. 2774
(1992).
---------------------------------------------------------------------------
The part 24 requirements include a provision, currently codified at
12 CFR 24.4(a)(4), that prescribes how a bank may use certain proceeds
from its section 24 (Eleventh) investments. This provision requires
that a national bank devote the profits, dividends, tax credits, and
other distributions from equity investments, or interest income from
debt investments received by a bank from a CDC or CD project
investment, to activities that primarily promote the public welfare as
determined by the OCC. Further, in the case of an investment in a for-
profit CDC subsidiary, a national bank must reinvest the profits,
dividends, and other distributions in the CDC during its first three
years of operation.
Section 24 (Eleventh) does not require reinvestment of public
welfare investment proceeds. The OCC included this provision in part 24
based on its practice in implementing 12 U.S.C. 24 (Eighth) (section 24
(Eighth)), which was enacted prior to section 24 (Eleventh). Section 24
(Eighth) generally allows a national bank to contribute to community
funds, or to charitable, philanthropic, or benevolent instrumentalities
conducive to the public welfare. Interpretive Ruling 7.7480, which
implemented section 24 (Eighth),2 permitted a bank to make
investments, as long as the investments were of a predominantly civic,
community, or public nature. At that time, the OCC concluded that it
could be inconsistent with the underlying charitable purpose of section
24 (Eighth) for a bank to retain profits on these investments.
Interpretive Ruling 7.7480 was, therefore, interpreted to require a
bank to reinvest profits, dividends, and other distributions in public
purpose activities.
\2\ Interpretive Ruling 7.7480, which was codified at 12 CFR
7.7480, was removed in 1993 when 12 CFR part 24 was promulgated.
---------------------------------------------------------------------------
Although part 24 was drafted under the authority of section 24
(Eleventh), which provides direct authority for public welfare
investments, it included a reinvestment requirement as a means of
furthering the public welfare nature of investments made pursuant to
this authority.
Description of the Proposal and Comments Received
In its October 26, 1995, NPRM, the OCC proposed to remove the
current part 24 reinvestment requirement. The statute does not restrict
an institution from earning and retaining profits on investments made
pursuant to section 24 (Eleventh), as long as the investments are
designed primarily to promote the public welfare. In addition, reaction
to the current rule indicates that in some instances the reinvestment
provision has discouraged banks from making part 24 investments. For
example, the requirement that a bank reinvest low-income housing tax
credits in restricted activities has diminished the economic incentive
for a bank to participate in this type of low-income housing project.
The OCC received 13 comments on its proposed removal of the
reinvestment requirement. Twelve of the commenters supported the
proposal. The majority of these commenters either indicated that the
proposal would provide an incentive for a national bank to make part 24
investments or indicated that the proposal would eliminate a
disincentive
[[Page 67050]]
that currently results from the reinvestment provision.
Several commenters also predicted that the change would not have a
negative effect on national banks' safety and soundness. One commenter
suggested that the proposed rule might promote safety and soundness by
allowing bank management increased flexibility in its use of part 24
investment proceeds.
Several commenters indicated that the proposed change would
decrease the cost or burden associated with part 24 compliance. These
comments generally were made with regard to low-income housing tax
credits for which determining compliance with the reinvestment
provision may be cumbersome. One commenter noted that the reinvestment
requirement furthers the misperception that public welfare investments
are adverse to bank profitability.
One commenter opposed the proposal based on a concern that it might
result in fewer part 24 investments. This commenter suggested that the
OCC monitor the level of national bank public welfare investments on an
ongoing basis to assess whether the change made by this final rule
yields the anticipated results.
Discussion of the Final Rule
In this final rule, the OCC adopts the proposal and removes the
reinvestment requirement from part 24. The OCC believes that removal of
the reinvestment provision will further the basic objective of section
24 (Eleventh) by encouraging banks to make more investments. The OCC
also believes that the change made by this final rule is consistent
with bank safety and soundness. It will enable a bank to use profits,
dividends, and other distributions from its part 24 investments for any
purpose based upon an overall assessment by the bank's management of
its financial needs and public welfare investment objectives.
Removing the reinvestment requirement will encourage banks to make
investments that promote the public welfare. It will not, however,
constrain a bank's use of investment proceeds nor hamper its ability to
ensure the sound operation of the bank as a whole.
The OCC will continue to monitor public welfare investment levels
and trends, as it has since public welfare investments were
specifically authorized by part 24. Based on this monitoring, the OCC
periodically will evaluate the effectiveness of part 24, as amended.
Regulatory Flexibility Act
It is hereby certified that this final rule will not have a
significant economic impact on a substantial number of small entities.
Accordingly, a regulatory flexibility analysis is not required. The
final rule will reduce somewhat the regulatory burden on national
banks, regardless of size, by removing the requirement that a national
bank must reinvest the proceeds of its public welfare investments.
Executive Order 12866
The OCC has determined that this final rule is not a significant
regulatory action under Executive Order 12866.
Unfunded Mandates
The OCC has determined that this final rule will not result in
expenditures by state, local, and tribal governments, or by the private
sector, of more than $100 million in any one year. Accordingly, a
budgetary impact statement is not required under section 202 of the
Unfunded Mandates Reform Act of 1995.
Effective Date
This final rule will become effective on January 1, 1996. The final
rule will apply to profits from both existing and new public welfare
investments. Thus, public welfare investment profits, dividends, tax
credits, interest, and other distributions that a national bank earns
prior to January 1, 1996, but which the bank has not reinvested by
January 1, 1996, do not have to be reinvested. In addition, public
welfare profits, dividends, tax credits, interest, and other
distributions that a national bank earns after January 1, 1996, which
stem from a public welfare investment undertaken by the national bank
prior to January 1, 1996, will not have to be reinvested. Finally,
profits, dividends, tax credits, interest, and other distributions from
a public welfare investment undertaken after January 1, 1996, will not
be subject to the reinvestment requirement.
The Administrative Procedure Act (5 U.S.C. 553(d)(1)) (APA) states
that a substantive rule shall not be published less than 30 days before
its effective date unless the rule grants or recognizes an exemption or
relieves a restriction. Because the current regulation restricts the
manner in which a national bank can use its pubic welfare investment
returns and the final rule removes this restriction, this final rule
satisfies the terms of the APA's exception to the requirement for a
delayed effective date.
In addition, section 302 of the Riegle Community Development and
Regulatory Improvement Act of 1994 generally restricts the effective
date of Federal banking agency regulations that impose additional
reporting, disclosure, or other new requirements on insured depository
institutions. The OCC believes that section 302 is not applicable to
this final rule because the final rule does not impose any additional
reporting, disclosure, or other new requirements on national banks.
Instead, this final rule removes the current reinvestment requirement.
List of Subjects in 12 CFR Part 24
Community development, Credit, Investments, National banks,
Reporting and recordkeeping requirements.
Authority and Issuance
For the reasons set forth in the preamble, part 24 of title 12,
chapter I, of the Code of Federal Regulations is amended as set forth
below:
PART 24--COMMUNITY DEVELOPMENT CORPORATION AND PROJECT INVESTMENTS
1. The authority citation for part 24 continues to read as follows:
Authority: 12 U.S.C. 24 (Eleventh), 93a, 161, 481 and 1818.
Sec. 24.4 [Amended]
2. Paragraph (a)(2) of Sec. 24.4 is amended by adding at the end of
the paragraph ``and''.
3. Paragraph (a)(3) of Sec. 24.4 is amended by removing ``; and''
at the end of the paragraph and adding a period.
4. Paragraph (a)(4) of Sec. 24.4 is removed.
Dated: December 15, 1995.
Eugene A. Ludwig,
Comptroller of the Currency.
[FR Doc. 95-31020 Filed 12-27-95; 8:45 am]
BILLING CODE 4810-33-P
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