issue-1996-05-31•Federal Register final rules — 1996-05-31
Federal Register final rules — 1996-05-31
issue-1996-05-31Federal Register final rules — 1996-05-31Regulation
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. 96-13718 Enterprise Zone Facility Bonds
[Federal Register Volume 61, Number 106 (Friday, May 31, 1996)]
[Rules and Regulations]
[Pages 27258-27263]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13718]
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[TD 8673]
RIN 1545-AM01
Enterprise Zone Facility Bonds
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Final regulations.
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SUMMARY: This document contains final regulations relating to
enterprise zone facility bonds issued by State and local governments.
These regulations reflect changes to the law made by the Omnibus Budget
Reconciliation Act of 1993. These regulations affect issuers of
enterprise zone facility bonds.
EFFECTIVE DATE: These regulations are effective May 31, 1996.
For dates of applicability of these regulations to enterprise zone
facility bond issues, see Sec. 1.1394-1(q) of these regulations.
FOR FURTHER INFORMATION CONTACT: Loretta J. Finger, (202) 622-3980 (not
a toll-free number).
SUPPLEMENTARY INFORMATION:
Background
On December 30, 1994, proposed regulations (FI-72-88) were
published in the Federal Register (59 FR 67658) to provide guidance
under sections 141 (relating to private activity bonds and to qualified
bonds), 145 (relating to qualified 501(c)(3) bonds), 148 (relating to
arbitrage), 150 (relating to change of use), and 1394 (relating to
enterprise zone facility bonds). On June 8, 1995, the IRS held a public
hearing on the proposed regulations. Written comments responding to the
proposed regulations were received.
This Treasury decision addresses the issues relating to enterprise
zone facility bonds. Later guidance will be published relating to
sections 141, 145, 148, and 150. After consideration of all the
comments, the proposed regulations under section 1394 (relating to
enterprise zone facility bonds) are adopted as revised by this Treasury
decision. The principal revisions to the proposed regulations under
section 1394 are discussed below.
Explanation of Provisions
Section 1394 applies to bonds issued to provide enterprise zone
facilities in both empowerment zones and enterprise communities
(zones).
A. Period of Compliance
The proposed regulations in general require compliance with the
requirements applicable to enterprise zone facility bonds throughout
the term of the enterprise zone facility bonds. The proposed
regulations provide two exceptions to this general rule: (i) A business
that is first established in connection with the issuance of enterprise
zone facility bonds does not need to meet the requirements of an
enterprise zone business and enterprise zone property until the
``testing date,'' which is the later of one year after the issue date
or one year after the date on which the financed property is placed in
service, and (ii) the issuer and principal user of the facility are
permitted a one-year period to cure noncompliance.
The final regulations modify the general rule to require compliance
with the requirements applicable to enterprise zone facility bonds
throughout the greater of (i) the remainder of the period during which
the zone designation is in effect under section 1391 (zone designation
period), and (ii) the period that ends on the weighted average maturity
date of the enterprise zone facility bonds. The final regulations also
provide that, in general, compliance with the requirements applicable
to enterprise zone facility bonds is not required after the date on
which the last of the enterprise zone facility bonds of the issue cease
to be outstanding.
1. Start of Compliance Period
Commentators requested that the testing date provisions be extended
to all businesses, not just start-up businesses. Commentators also
suggested lengthening the start-up period. The final regulations follow
the recommendation to expand the testing date provisions to all issuers
and principal users of property financed with enterprise zone facility
bonds if the issuer and the principal user reasonably expect that the
requirements will be met by the testing date and proceed with due
diligence to comply with the requirements. The start-up period is
increased to the later of 18 months after the issue date or 18 months
after the date on which the financed property is placed in service.
2. Compliance Period for Certain Requirements
Commentators suggested that compliance with the requirements for an
enterprise zone business should be based only on reasonable
expectations on the issue date. Commentators suggested that,
alternatively, the required compliance period should be reduced to
either (i) three years (similar to the test period for qualified small
issue manufacturing bonds), or (ii) the remainder of the zone
designation period.
Issuers and principal users should be required to meet the
requirements applicable to enterprise zone facility bonds for a
meaningful period of time in order to further the goals of economic
development in the zones. Therefore, for purposes of meeting the
requirements applicable to enterprise zone facility bonds, the final
regulations in general require issuers and principal users of financed
property to meet the requirements throughout the greater of (i) the
remainder of the zone designation period, and (ii) the period that ends
on the weighted average maturity date of the enterprise zone facility
bonds.
While compliance is generally not required after the enterprise
zone facility bonds are retired, the final regulations do require
issuers and principal users to meet the requirements of an enterprise
zone business and enterprise zone property for a minimum compliance
period of at least three years after the initial testing date. The
final regulations permit the issuer to identify an alternative initial
testing date. This alternative initial testing date is a date after the
issue date of the enterprise zone facility bonds and prior to the
initial testing date that would have been otherwise determined under
the final regulations.
Principal users are subject to the change in use penalty of section
1394(e) throughout the greater of (i) the remainder of the zone
designation period, and (ii) the period that ends on the weighted
average maturity date of the enterprise zone facility bonds.
[[Page 27259]]
3. Measurement of Compliance
The proposed regulations provide guidance on meeting the enterprise
zone business definitions. Commentators pointed out several
difficulties in meeting the tests in the proposed regulations and in
curing noncompliance within a one-year period. Commentators also asked
for guidance on how part-time employees are to be treated for the 35
percent resident employee requirement.
In general, each of the enterprise zone business requirements
applies over taxable year periods. The beginning and end of the period
of required compliance, however, may not correspond to the beginning
and ending dates of the principal user's taxable year. The proposed
regulations do not address the treatment of a taxable year only a part
of which falls in a required compliance period. The final regulations
provide that a taxable year is disregarded if the part of the year that
falls in a required compliance period does not exceed 90 days.
Although the final regulations generally require annual compliance
for the requirements under sections 1397B and 1397C, the final
regulations allow a five-year averaging, taking into account only
immediately preceding years going back to the taxable year that
includes the initial testing date. The requirements under sections
1397B and 1397C include requirements relating to location of
performance of employee services, location of tangible and intangible
property, source of gross income from the active conduct of business,
and the residence of employees. The averaging approach permits
principal users who exceed the requirements to provide a cushion for
future unanticipated noncompliance (for example, a non-recurring
extraordinary payment for services performed outside the zone).
The final regulations allow the 35 percent resident employee
requirement to be met on any reasonable basis (for example, on a per-
employee basis or on the basis of employee actual work hours). For
purposes of the per-employee fraction, employees working less than 15
hours a week are not included in the numerator or the denominator. The
principal user must consistently apply the method to determine
compliance with the 35 percent resident employee requirement throughout
the required compliance period.
The final regulations also provide that a zone employee who moves
out of the zone may continue to be treated as a resident of the zone,
provided that employee was a bona fide resident of the zone, that
employee continues to perform services for the principal user in an
enterprise zone business in the zone and substantially all of those
services are performed in the zone, and the principal user hires a
resident of the zone for the next available comparable (or lesser)
position.
The final regulations reduce the ``substantially all'' requirement
for purposes of various tests under sections 1397B and 1397C from 90
percent to 85 percent.
B. Qualified Zone Property Definition
The proposed regulations provide that property that has been
abandoned for more than one year meets the original use requirement.
The final regulations provide that if real property is vacant for at
least a one-year period including the date of zone designation, use
prior to that period is disregarded for purposes of determining
original use.
C. Other Rules
Commentators requested guidance on the appropriate method for
treating activities within the zone as though they constituted a
separately incorporated business for purposes of the enterprise zone
business test.
The final regulations allow a business to treat its activities
within a zone as part of a separately incorporated business if it
allocates income and activities attributable to the business within the
zone using a reasonable allocation method and has evidence of its
allocations sufficient to establish compliance with the various
requirements.
D. Principal User
The proposed regulations do not address the requirement that ``the
principal user'' of the enterprise zone facility bond proceeds be an
enterprise zone business. Commentators suggested that principal user
generally be defined in the same manner as in the regulations
applicable to qualified small issue bonds and qualified 501(c)(3)
bonds, which relate to use of bond proceeds by ``any'' principal user,
but without applying the definition to customers. One commentator
(relying on the definition of a qualifying business) suggested that
financing for commercial real estate owned by a business that is not an
enterprise zone business should be permitted, so long as 50 percent of
the gross rental income comes from lessees that are enterprise zone
businesses.
The final regulations provide that an owner of financed property is
the principal user except that, in the case of commercial real estate,
the lessee may be treated as the principal user if the rental of the
property is a qualified business under section 1397B(d)(2).
Special Analyses
It has been determined that this Treasury decision is not a
significant regulatory action as defined in EO 12866. Therefore, a
regulatory assessment is not required. It also has been determined that
section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5)
and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply to
these regulations, and, therefore, a Regulatory Flexibility Analysis is
not required. Pursuant to section 7805(f) of the Internal Revenue Code,
the notice of proposed rulemaking preceding these regulations was
submitted to the Small Business Administration for comment on its
impact on small business.
Drafting Information. The principal author of these regulations
is Loretta J. Finger, Office of Assistant Chief Counsel (Financial
Institutions and Products). However, other personnel from the IRS
and Treasury Department participated in their development.
List of Subjects in 26 CFR Part 1
Income taxes, Reporting and recordkeeping requirements.
Adoption of Amendments to the Regulations
Accordingly, 26 CFR part 1 is amended as follows:
PART 1--INCOME TAXES
Paragraph 1. The authority citation for part 1 is amended by adding
an entry in numerical order to read as follows:
Authority: 26 U.S.C. 7805 * * *
Section 1.1394-1 also issued under 26 U.S.C. 1397D.
Par. 2. Sections 1.1394-0 and 1.1394-1 are added under the
undesignated centerheading ``DEFINITIONS; SPECIAL RULES'' to read as
follows:
Sec. 1.1394-0 Table of contents.
This section lists the major paragraph headings contained in
Sec. 1.1394-1.
Sec. 1.1394-1 Enterprise zone facility bonds.
(a) Scope.
(b) Period of compliance.
(1) In general.
(2) Compliance after an issue is retired.
(3) Deemed compliance.
(c) Special rules for requirements of sections 1397B and 1397C.
(1) Start of compliance period.
(2) Compliance period for certain prohibited activities.
(3) Minimum compliance period.
(4) Initial testing date.
[[Page 27260]]
(d) Testing on an average basis.
(e) Resident employee requirements.
(1) Determination of employee status.
(2) Employee treated as zone resident.
(3) Resident employee percentage.
(f) Application to pooled financing bond and loan recycling
programs.
(g) Limitation on amount of bonds.
(1) Determination of outstanding amount.
(2) Pooled financing bond programs.
(h) Original use requirement for purposes of qualified zone
property.
(i) Land.
(j) Principal user.
(1) In general.
(2) Rental of real property.
(3) Pooled financing bond program.
(k) Treatment as separately incorporated business.
(l) Substantially all.
(m) Application of sections 142 and 146 through 150.
(1) In general.
(2) Maturity limitation.
(3) Volume cap.
(4) Remedial actions.
(n) Continuing compliance and change of use penalties.
(1) In general.
(2) Coordination with deemed compliance provisions.
(3) Application to pooled financing bond and loan recycling
programs.
(4) Section 150(b)(4) inapplicable.
(o) Refunding bonds.
(1) In general.
(2) Maturity limitation.
(p) Examples.
(q) Effective dates.
(1) In general.
(2) Elective retroactive application in whole.
Sec. 1.1394-1 Enterprise zone facility bonds.
(a) Scope. This section contains rules relating to tax-exempt bonds
under section 1394 (enterprise zone facility bonds) to provide
enterprise zone facilities in both empowerment zones and enterprise
communities (zones). See sections 1394, 1397B, and 1397C for other
rules and definitions.
(b) Period of compliance--(1) In general. Except as provided in
paragraphs (b)(2) and (c) of this section, the requirements under
sections 1394(a) and (b) applicable to enterprise zone facility bonds
must be complied with throughout the greater of the following--
(i) The remainder of the period during which the zone designation
is in effect under section 1391 (zone designation period); and
(ii) The period that ends on the weighted average maturity date of
the enterprise zone facility bonds.
(2) Compliance after an issue is retired. Except as provided in
paragraph (c)(3) of this section, the requirements applicable to
enterprise zone facility bonds do not apply to an issue after the date
on which no enterprise zone facility bonds of the issue are
outstanding.
(3) Deemed compliance--(i) General rule. An issue is deemed to
comply with the requirements of sections 1394(a) and (b) if--
(A) The issuer and the principal user in good faith attempt to meet
the requirements of sections 1394(a) and (b) throughout the period of
compliance required under this section; and
(B) Any failure to meet these requirements is corrected within a
one-year period after the failure is first discovered.
(ii) Exception. The provisions of paragraph (b)(3)(i) of this
section do not apply to the requirements of section 1397B(d)(5)(A)
(relating to certain prohibited business activities).
(iii) Good faith. In order to satisfy the good faith requirement of
paragraph (b)(3)(i)(A) of this section, the principal user must at
least annually demonstrate to the issuer the principal user's
monitoring of compliance with the requirements of sections 1394(a) and
(b).
(c) Special rules for requirements of sections 1397B and 1397C--(1)
Start of compliance period. Except as provided in paragraph (c)(2) of
this section, the requirements of sections 1397B (relating to
qualification as an enterprise zone business) and 1397C (relating to
satisfaction of the rules for qualified zone property) do not apply
prior to the initial testing date (as defined in paragraph (c)(4) of
this section) if--
(i) The issuer and the principal user reasonably expect on the
issue date of the enterprise zone facility bonds that those
requirements will be met by the principal user on or before the initial
testing date; and
(ii) The issuer and the principal user exercise due diligence to
meet those requirements prior to the initial testing date.
(2) Compliance period for certain prohibited activities. The
requirements of section 1397B(d)(5)(A) (relating to certain prohibited
business activities) must be complied with throughout the term of the
enterprise zone facility bonds.
(3) Minimum compliance period. The requirements of sections
1397B(b) or (c) and 1397C must be satisfied for a continuous period of
at least three years after the initial testing date, notwithstanding
that--
(i) The period of compliance required under paragraph (b)(1) of
this section expires before the end of the three-year period; or
(ii) The enterprise zone facility bonds are retired before the end
of the three-year period.
(4) Initial testing date--(i) In general. Except as otherwise
provided in paragraph (c)(4)(ii) of this section, the initial testing
date is the date that is 18 months after the later of the issue date of
the enterprise zone facility bonds or the date on which the financed
property is placed in service; provided, however, it is not later
than--
(A) Three years after the issue date; or
(B) Five years after the issue date, if the issue finances a
construction project for which both the issuer and a licensed architect
or engineer certify on or before the issue date of the enterprise zone
facility bonds that more than three years after the issue date is
necessary to complete construction of the project.
(ii) Alternative initial testing date. If the issuer identifies as
the initial testing date a date after the issue date of the enterprise
zone facility bonds and prior to the initial testing date that would
have been determined under paragraph (c)(4)(i) of this section, that
earlier date is treated as the initial testing date.
(d) Testing on an average basis. Compliance with each of the
requirements of section 1397B(b) or (c) is tested each taxable year.
Compliance with any of the requirements may be tested on an average
basis, taking into account up to four immediately preceding taxable
years plus the current taxable year. The earliest taxable year that may
be taken into account for purposes of the preceding sentence is the
taxable year that includes the initial testing date. A taxable year is
disregarded if the part of the taxable year that falls in a required
compliance period does not exceed 90 days.
(e) Resident employee requirements--(1) Determination of employee
status. For purposes of the requirement of section 1397B(b)(6) or
(c)(5) that at least 35 percent of the employees are residents of the
zone, the issuer and the principal user may rely on a certification,
signed under penalties of perjury by the employee, provided--
(i) The certification provides to the principal user the address of
the employee's principal residence;
(ii) The employee is required by the certification to notify the
principal user of a change of the employee's principal residence; and
(iii) Neither the issuer nor the principal user has actual
knowledge that the principal residence set forth in the certification
is not the employee's principal residence.
(2) Employee treated as zone resident. If an issue fails to comply
with the requirement of section 1397B(b)(6) or (c)(5) because an
employee who initially resided in the zone moves out of the
[[Page 27261]]
zone, that employee is treated as still residing in the zone if--
(i) That employee was a bona fide resident of the zone at the time
of the certification described in paragraph (e)(1) of this section;
(ii) That employee continues to perform services for the principal
user in an enterprise zone business and substantially all of those
services are performed in the zone; and
(iii) A resident of the zone meeting the requirements of section
1397B(b)(5) or (c)(4) is hired by the principal user for the next
available comparable (or lesser) position.
(3) Resident employee percentage. For purposes of meeting the
requirement of section 1397B(b)(6) or (c)(5) that at least 35 percent
of the employees of an enterprise zone business are residents of a
zone, paragraphs (e)(3)(i) and (ii) of this section apply.
(i) The term employee includes a self-employed individual within
the meaning of section 401(c)(1).
(ii) The resident employee percentage is determined on any
reasonable basis consistently applied throughout the period of
compliance required under this section. The per-employee fraction (as
defined in paragraph (e)(3)(ii)(A) of this section) or the employee
actual work hour fraction (as defined in paragraph (e)(3)(ii)(B) of
this section) are both reasonable methods.
(A) The term per-employee fraction means the fraction, the
numerator of which is, during the taxable year, the number of employees
who work at least 15 hours a week for the principal user, who reside in
the zone, and who are employed for at least 90 days, and the
denominator of which is, during the same taxable year, the aggregate
number of all employees who work at least 15 hours a week for the
principal user and who are employed for at least 90 days.
(B) The term employee actual work hour fraction means the fraction,
the numerator of which is the aggregate total actual hours of work for
the principal user of employees who reside in the zone during a taxable
year, and the denominator of which is the aggregate total actual hours
of work for the principal user of all employees during the same taxable
year.
(f) Application to pooled financing bond and loan recycling
programs. In the case of a pooled financing bond program described in
paragraph (g)(2) of this section or a loan recycling program described
in paragraph (m)(2)(ii) of this section, the requirements of paragraphs
(b) through (e) of this section apply on a loan-by-loan basis. See also
paragraphs (g)(2) (relating to limitation on amount of bonds), (m)(2)
(relating to maturity limitations), (m)(3) (relating to volume cap),
and (m)(4) (relating to remedial actions) of this section.
(g) Limitation on amount of bonds--(1) Determination of outstanding
amount. Whether an issue satisfies the requirements of section 1394(c)
(relating to the $3 million and $20 million aggregate limitations on
the amount of outstanding enterprise zone facility bonds) is determined
as of the issue date of that issue, based on the issue price of that
issue and the adjusted issue price of outstanding enterprise zone
facility bonds. Amounts of outstanding enterprise zone facility bonds
allocable to any entity are determined under rules contained in section
144(a)(10)(C) and the underlying regulations. Thus, the definition of
principal user for purposes of section 1394(c) is different from the
definition of principal user for purposes of paragraph (j) of this
section.
(2) Pooled financing bond programs--(i) In general. The limitations
of section 1394(c) for an issue for a pooled financing bond program are
determined with regard to the amount of the actual loans to enterprise
zone businesses rather than the amount lent to intermediary lenders as
defined in paragraph (g)(2)(ii) of this section. This paragraph (g)(2)
applies only to the extent the proceeds of those enterprise zone
facility bonds are loaned to one or more enterprise zone businesses
within 42 months of the issue date of the enterprise zone facility
bonds or are used to redeem enterprise zone facility bonds of the issue
within that 42-month period.
(ii) Pooled financing bond program defined. For purposes of this
section, a pooled financing bond program is a program in which the
issuer of enterprise zone facility bonds, in order to provide loans to
enterprise zone businesses, lends the proceeds of the enterprise zone
facility bonds to a bank or similar intermediary (intermediary lender)
which must then relend the proceeds to two or more enterprise zone
businesses.
(h) Original use requirement for purposes of qualified zone
property. In general, for purposes of section 1397C(a)(1)(B), the term
original use means the first use to which the property is put within
the zone. For purposes of section 1394, if property is vacant for at
least a one-year period including the date of zone designation, use
prior to that period is disregarded for purposes of determining
original use. For this purpose, de minimis incidental uses of property,
such as renting the side of a building for a billboard, are
disregarded.
(i) Land. The determination of whether land is functionally related
and subordinate to qualified zone property is made in a manner
consistent with the rules for exempt facilities under section 142.
(j) Principal user--(1) In general. Except as provided in paragraph
(j)(2) of this section, the term principal user means the owner of
financed property.
(2) Rental of real property--(i) A lessee as the principal user. If
an owner of real property financed with enterprise zone facility bonds
is not an enterprise zone business within the meaning of section 1397B,
but the rental of the property is a qualified business within the
meaning of section 1397B(d)(2), the term principal user for purposes of
sections 1394(b) and (e) means the lessee or lessees.
(ii) Allocation of enterprise zone facility bonds. If a lessee is
the principal user of real property under paragraph (j)(2)(i) of this
section, then proceeds of enterprise zone facility bonds may be
allocated to expenditures for real property only to the extent of the
property allocable to the lessee's leased space, including expenditures
for common areas.
(3) Pooled financing bond program. An intermediary lender in a
pooled financing bond program described in paragraph (g)(2) of this
section is not treated as the principal user.
(k) Treatment as separately incorporated business. For purposes of
section 1394(b)(3)(B), a trade or business may be treated as separately
incorporated if allocations of income and activities attributable to
the business conducted within the zone are made using a reasonable
allocation method and if that trade or business has evidence of those
allocations sufficient to establish compliance with the requirements of
paragraphs (b) through (f) of this section. Whether an allocation
method is reasonable will depend upon the facts and circumstances. An
allocation method will not be considered to be reasonable unless the
allocation method is applied consistently by the trade or business and
is consistent with the purposes of section 1394.
(l) Substantially all. For purposes of sections 1397B and 1397C(a),
the term substantially all means 85 percent.
(m) Application of sections 142 and 146 through 150--(1) In
general. Except as provided in this paragraph (m), enterprise zone
facility bonds are treated as exempt facility bonds that are described
in section 142(a), and all regulations generally applicable to exempt
facility bonds apply to enterprise zone facility bonds. For this
[[Page 27262]]
purpose, enterprise zone businesses are treated as meeting the public
use requirement. Sections 147(c)(1)(A) (relating to limitations on
financing the acquisition of land), 147(d) (relating to financing the
acquisition of existing property), and 142(b)(2) (relating to
limitations on financing office space) do not apply to enterprise zone
facility bonds. See also paragraph (n)(4) of this section.
(2) Maturity limitation--(i) Requirements. An issue of enterprise
zone facility bonds, the proceeds of which are to be used as part of a
loan recycling program, satisfies the requirements of section 147(b)
if--
(A) Each loan satisfies the requirements of section 147(b)
(determined by treating each separate loan as a separate issue); and
(B) The term of the issue does not exceed 30 years.
(ii) Loan recycling program defined. A loan recycling program is a
program in which--
(A) The issuer reasonably expects as of the issue date of the
enterprise zone facility bonds that loan repayments from principal
users will be used to make additional loans during the zone designation
period;
(B) Repayments of principal on loans (including prepayments)
received during the zone designation period are used within six months
of the date of receipt either to make new loans to enterprise zone
businesses or to redeem enterprise zone facility bonds that are part of
the issue; and
(C) Repayments of principal on loans (including prepayments)
received after the zone designation period are used to redeem
enterprise zone facility bonds that are part of the issue within six
months of the date of receipt.
(3) Volume cap. For purposes of applying section 146(f)(5)(A)
(relating to elective carryforward of unused volume limitation),
issuing enterprise zone facility bonds is a carryforward purpose.
(4) Remedial actions. In the case of a pooled financing bond
program described in paragraph (g)(2) of this section or a loan
recycling program described in paragraph (m)(2)(ii) of this section, if
a loan fails to meet the requirements of paragraphs (b) through (f) of
this section, within six months of noncompliance (after taking into
account the deemed compliance provisions of paragraph (b)(3) of this
section, if applicable), an amount equal to the outstanding loan
principal must be prepaid and the issuer must--
(i) Reloan the amount of the prepayment; or
(ii) Use the prepayment to redeem an amount of outstanding
enterprise zone facility bonds equal to the outstanding principal
amount of the loan that no longer meets those requirements.
(n) Continuing compliance and change of use penalties--(1) In
general. The penalty provisions of section 1394(e) apply throughout the
period of compliance required under paragraph (b)(1) of this section.
(2) Coordination with deemed compliance provisions. Section
1394(e)(2) does not apply during any period during which the issue is
deemed to comply with the requirements of section 1394 under the deemed
compliance provisions of paragraph (b)(3) of this section.
(3) Application to pooled financing bond and loan recycling
programs. In the case of a pooled financing bond program described in
paragraph (g)(2) of this section or a loan recycling program described
in paragraph (m)(2)(ii) of this section, section 1394(e) applies on a
loan-by-loan basis.
(4) Section 150(b)(4) inapplicable. Section 150(b)(4) does not
apply to enterprise zone facility bonds.
(o) Refunding bonds--(1) In general. An issue of bonds issued after
the zone designation period to refund enterprise zone facility bonds
(other than in an advance refunding) are treated as enterprise zone
facility bonds if the refunding issue and the prior issue, if treated
as a single combined issue, would meet all of the requirements for
enterprise zone facility bonds, except the requirements in section
1394(c). For example, the compliance period described in paragraph
(b)(1) of this section is calculated taking into account any extension
of the weighted average maturity of the refunding issue compared to the
remaining weighted average maturity of the prior issue. The proceeds of
the refunding issue are allocated to the same expenditures and purpose
investments as the prior issue.
(2) Maturity limitation. The maturity limitation of section 147(b)
is applied to a refunding issue by taking into account the issuer's
reasonable expectations about the economic life of the financed
property as of the issue date of the prior issue and the actual
weighted average maturity of the combined refunding issue and prior
issue.
(p) Examples. The following examples illustrate paragraphs (a)
through (o) of this section:
Example 1. Averaging of enterprise zone business requirements.
City C issues enterprise zone facility bonds, the proceeds of which
are loaned by C to Corporation B to finance the acquisition of
equipment for its existing business located in a zone. On the issue
date of the enterprise zone facility bonds, B meets all of the
requirements of section 1397B(b), except that only 25% of B's
employees reside in the zone. C and B reasonably expect on the issue
date to meet all requirements of section 1397B(b) by the date that
is 18 months after the equipment is placed in service (the initial
testing date). In each of the first, second, and third taxable years
after the initial testing date, 35%, 40% and 45%, respectively, of
B's employees are zone residents. In the fourth year after the
testing date, only 25% of B's employees are zone residents. B
continues to meet the 35% resident employee requirement, because the
average of zone resident employees for those four taxable years is
approximately 36%. The percentage of zone residents employed by B
before the initial testing date is not included in determining
whether B continues to comply with the 35% resident employee
requirement.
Example 2. Measurement of resident employee percentage.
Authority D issues enterprise zone facility bonds, the proceeds of
which are loaned to Sole Proprietor F to establish an accounting
business in a zone. In the first year after the initial testing
date, the staff working for F includes F, who works 40 hours per
week and does not live in the zone, one employee who resides in the
zone and works 40 hours per week, one employee who does not reside
in the zone and works 20 hours per week, and one employee who does
not reside in the zone and works 10 hours per week. F meets the 35%
resident employee test by calculating the percentage on the basis of
employee actual work hours as described in paragraph (e)(3)(ii)(B)
of this section. If F uses the per-employee basis as described in
paragraph (e)(3)(ii)(A) of this section to determine if the resident
employee test is met, the percentage of employees who are zone
residents on a per-employee basis is only 33% because F must exclude
from the numerator and the denominator the employee who works only
10 hours per week. If F calculates the resident employee test as a
percentage of employee actual work hours as described in paragraph
(e)(3)(ii)(B) of this section in the first year, F must calculate
the resident employee test as a percentage of employee actual work
hours each year.
Example 3. Active conduct of business within the zone. State G
issues enterprise zone facility bonds and loans the proceeds to
Corporation H to finance the acquisition of equipment for H's mail
order clothing business, which is located in a zone. H purchases the
supplies for its clothing business from suppliers located both
within and outside of the zone and expects that orders will be
received both from customers who will reside or work within the zone
and from others outside the zone. All orders are received and filled
at, and are shipped from, H's clothing business located in the zone.
H meets the requirement that at least 80% of its gross income is
derived from the active conduct of business within the zone.
Example 4. Enterprise zone business definition. City J issues
enterprise zone facility bonds, the proceeds of which are loaned to
Partnership K to finance the acquisition of equipment for its
printing operation located in the zone. All orders are taken and
completed, and all billing and
[[Page 27263]]
accounting activities are performed, at the print shop located in
the zone. K, on occasion, uses its equipment (including its trucks)
and employees to deliver large print jobs to customers who reside
outside of the zone. So long as K is able to establish that its
trucks are used in the zone at least 85% of the time and its
employees perform at least 85% of services for K in the zone, K
meets the requirements of sections 1397B(b)(3) and (5).
Example 5. Treatment as a separately incorporated business. The
facts are the same as in Example 4 except that six years after the
issue date of the enterprise zone facility bonds, K determines to
expand its operations to a second location outside of the boundaries
of the zone. Although the expansion would result in the failure of K
to meet the tests of 1397B(b), K, using a reasonable allocation
method, allocates income and activities to its operations within the
zone and has evidence of these allocations sufficient to establish
compliance with the requirements of paragraphs (b) through (f) of
this section. The bonds will not fail to be enterprise zone facility
bonds merely because of the expansion.
Example 6. Treatment of pooled financing bond programs.
Authority L issues bonds in the aggregate principal amount of
$5,000,000 and loans the proceeds to Bank M pursuant to a loans-to-
lenders program. M does not meet the definition of enterprise zone
business contained in section 1397B. Prior to the issue date of the
bonds, L held a public hearing regarding issuance of the bonds for
the loans-to-lenders program, describing the projects of identified
borrowers to be financed initially with $4,000,000 of the proceeds
of the bonds. The applicable elected representative of L approved
issuance of the bonds subsequent to the public hearing. The loan
agreement between L and M provides that the other proceeds of the
bonds will be held by M and loaned to borrowers that qualify as
enterprise zone businesses, following a public hearing and approval
by the applicable elected representative of L of each loan by M to
an enterprise zone business. None of the loans will be in principal
amounts in excess of $3,000,000. The loans by M will otherwise meet
the requirements of section 1394. The bonds will be enterprise zone
facility bonds.
Example 7. Original use requirement for purposes of qualified
zone property. City N issues enterprise zone facility bonds, the
proceeds of which are loaned to Corporation P to finance the
acquisition of equipment. P uses the proceeds after the zone
designation date to purchase used equipment located outside of the
zone and places the equipment in service at its location in the
zone. Substantially all of the use of the equipment is in the zone
and is in the active conduct of a qualified business by P. The
equipment is treated as qualified enterprise zone property under
section 1397C because P makes the first use of the property within
the zone after the zone designation date.
Example 8. Principal user. State R issues enterprise zone
facility bonds and loans the proceeds to Partnership S to finance
the construction of a small shopping center to be located in a zone.
S is in the business of commercial real estate. S is not an
enterprise zone business, but has secured one anchor lessee,
Corporation T, for the shopping center. T would qualify as an
enterprise zone business. S will derive 60% of its gross rental
income of the shopping center from T. S does not anticipate that the
remaining rental income will come from enterprise zone businesses. T
will occupy 60% of the total rentable space in the shopping center.
S can use enterprise zone facility bond proceeds to finance the
portion of the costs of the shopping center allocable to T (60%)
because T is treated as the principal user of the enterprise zone
facility bond proceeds.
Example 9. Remedial actions. State W issues pooled financing
enterprise zone facility bonds, the proceeds of which will be loaned
to several enterprise zone businesses in the two enterprise
communities and one empowerment zone in W. Proceeds of the pooled
financing bonds are loaned to Corporation X, an enterprise zone
business, for a term of 10 years. Six years after the date of the
loan, X expands its operations beyond the empowerment zone and is no
longer able to meet the requirements of section 1394. X does not
reasonably expect to be able to cure the noncompliance. The loan
documents provide that X must prepay its loan in the event of
noncompliance. W does not expect to be able to reloan the prepayment
by X within six months of noncompliance. X's noncompliance will not
affect the qualification of the pooled financing bonds as enterprise
zone facility bonds if W uses the proceeds from the loan prepayment
to redeem outstanding enterprise zone facility bonds within six
months of noncompliance in an amount comparable to the outstanding
amount of the loan immediately prior to prepayment. X will be denied
an interest expense deduction for the interest accruing from the
first day of the taxable year in which the noncompliance began.
(q) Effective dates--(1) In general. Except as otherwise provided
in this section, the provisions of this section apply to all issues
issued after July 30, 1996, and subject to section 1394.
(2) Elective retroactive application in whole. An issuer may apply
the provisions of this section in whole, but not in part, to any issue
that is outstanding on July 30, 1996, and is subject to section 1394.
Approved: May 22, 1996.
Margaret Milner Richardson,
Commissioner of Internal Revenue.
Leslie Samuels,
Assistant Secretary of the Treasury.
[FR Doc. 96-13718 Filed 5-30-96; 8:45 am]
BILLING CODE 4830-01-U
Complete official Federal Register PDF
FR Doc. 96-13708 Exports of Alaskan North Slope Crude Oil; Establishment of License Exception TAPS
[Federal Register Volume 61, Number 106 (Friday, May 31, 1996)]
[Rules and Regulations]
[Pages 27255-27258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13708]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
Bureau of Export Administration
15 CFR Parts 754, 758, and 762
[Docket No.960523147-01]
RIN 0694-AB44
Exports of Alaskan North Slope Crude Oil; Establishment of
License Exception TAPS
AGENCY: Bureau of Export Administration, Commerce
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Export Administration is amending the short
supply provisions of the Export Administration Regulations to modify
the restrictions on exports of Alaskan North Slope crude oil and
establish License Exception TAPS authorizing such exports, with certain
conditions. License Exception TAPS is based on: 1) Public Law 104-58,
which allows for the export of crude oil transported by pipeline over
right-of-way granted pursuant to section 203 of the Trans-Alaska
Pipeline Authorization Act (TAPS); 2) the President's April 28, 1996
determination that exports are in the national interest; and 3) the
President's direction to the Secretary of Commerce to issue a License
Exception with conditions for export of TAPS crude oil.
EFFECTIVE DATE: May 28, 1996.
FOR FURTHER INFORMATION CONTACT: Bernard Kritzer, Office of Chemical
and Biological Controls and Treaty Compliance, Bureau of Export
Administration, Department of Commerce, Telephone: (202) 482-0894.
SUPPLEMENTARY INFORMATION:
Background
Section 7(d) of the Export Administration Act of 1979, (50 U.S.C.
app. 2406) restricts exports of crude oil transported over right-of-way
granted pursuant to section 203 of the Trans-Alaska Pipeline
Authorization Act (43 U.S.C. 1652), with certain exceptions, unless the
President makes certain findings, recommends exports to the Congress on
the basis of those findings, and the Congress then agrees to the
recommendation by joint resolution enacted into law. Although the
Export Administration Act (EAA) expired on August 20, 1994, the
President invoked the International Emergency Economic Powers Act and
continued in effect, to the extent permitted by law, the provisions of
the EAA and the EAR in Executive Order 12924 of August 19,
[[Page 27256]]
1994, and notice of August 15, 1995 (60 FR 42767).
On November 28, 1995, the President signed into law Public Law 104-
58, which created a new section 28(s) of the Mineral Leasing Act (30
U.S.C. 185). Public Law 104-58 allows exports of oil transported over
right-of-way granted pursuant to section 203 of the Trans-Alaska
Pipeline Authorization Act (43 U.S.C. 1652), ``notwithstanding any
provision of this Act or any other provision of law (including any
regulation),'' unless the President finds that such exports are not in
the national interest.
To address the economic and environmental issues identified in
Public Law 104-58, the National Economic Council and the Council on
Environmental Quality working with the Department of Commerce's Bureau
of Export Administration, coordinated an intensive interagency review
of the effects of lifting the export ban on oil transported over right-
of-way granted pursuant to section 203 of the Trans-Alaska Pipeline
Authorization Act (TAPS oil). After extensive public hearings, the
review of public comments, and analytical evaluation, the interagency
working group found that the exports are not likely to pose a
significant impact to the economy or the environment.
On April 28, 1996, the President determined that, subject to
certain conditions described below, exports of crude oil transported
over right-of-way granted pursuant to section 203 of the Trans-Alaska
Pipeline Authorization Act (TAPS) are in the national interest. The
President found that such exports:
(1) Will not diminish the total quantity or quality of petroleum
available to the United States;
(2) Will not pose significant risks to the environment with the
imposition of a series of measures to further ensure the safety of the
environment; and
(3) Are not likely to cause sustained material oil supply shortages
or sustained oil price increases above world market levels that would
cause sustained material adverse employment effects in the United
States or that would cause substantial harm to consumers, including
those located in noncontiguous States and Pacific territories.
The President directed the Secretary of Commerce to issue a License
Exception, authorizing exports of TAPS oil, subject to certain
conditions designed to preserve the environment.
This final rule amends part 754 of the Export Administration
Regulations (EAR) by establishing a new License Exception TAPS. License
Exception TAPS authorizes exports of oil transported over right-of-way
granted pursuant to section 203 of the Trans-Alaska Pipeline
Authorization Act (42 U.S.C. 1652) provided that the transaction meets
the following conditions:
(1) The TAPS oil is transported by a vessel documented under the
laws of the United States and owned by a citizen of the United States
(in accordance with section 2 of the Shipping Act, 1916 (46 U.S.C. app.
802));
(2) All tankers involved in the TAPS oil export trade use the same
route that they do for shipments to Hawaii until they reach a point 300
miles due south of Cape Hinchinbrook Light and then turn toward Asian
destinations. After reaching that point, tankers in the TAPS oil export
trade must remain outside of the 200 nautical mile Exclusive Economic
Zone, as defined in 16 U.S.C. 1802(6). Tankers returning from foreign
ports to Valdez, Alaska must abide by the same restrictions, in
reverse, on their return route. This condition shall not be construed
to limit any statutory, treaty or Common Law rights and duties imposed
upon and enjoyed by tankers in the TAPS oil export trade, including,
but not limited to, force majeure and maritime search and rescue rules;
(3) The owner or operator of a tanker exporting TAPS oil shall:
(a) Adopt a mandatory program of deep water ballast exchange (i.e.,
at least 2,000 meters water depth). Exceptions can be made at the
discretion of the captain only in order to ensure the safety of the
vessel and crew. Specified records shall be maintained and made
available for audit by government officials.
(b) Be equipped with satellite-based communications systems that
will enable the Coast Guard independently to determine the tanker's
location;
(c) Maintain a Critical Area Inspection Plan for each tanker in the
TAPS oil export trade in accordance with the U.S. Coast Guard's
Navigation and Inspection Circular No. 15-91 as amended, which shall
include an annual internal survey of the vessel's cargo block tanks;
and
(4) The exporter files with BXA a Shipper's Export Declaration
covering the export not later than 21 days after the export has
occurred.
This final rule also makes other conforming changes in the short
supply provisions of the EAR by revising part 754 concerning TAPS oil
exports, the export clearance provisions of part 758 regarding the
requirement to submit the Shippers' Export Declaration (SED) to the
Bureau of Export Administration, and the recordkeeping requirements of
part 762.
The Export Administration Regulations (EAR) have been totally
amended by an interim rule published on March 25, 1996 (61 FR 12714),
which provides for a transition period within which exporters can take
advantage of both the old rules and the new rules until November 1,
1996. This rule permits exports of TAPS oil pursuant to a License
Exception. Exporters can make exports of TAPS oil under this exception
as of the effective date of this rule. Accordingly, the old rule is not
being revised.
Rulemaking Requirements
1. This final rule has been determined to be significant for the
purpose of Executive Order 12866.
2. Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with a collection of information, subject to the
requirements of the Paperwork Reduction Act, unless that collection of
information displays a currently valid Office of Management and Budget
Control Number. This rule contains a collection of information subject
to the Paperwork Reduction Act, which is cleared by the Office of
Management and Budget under existing OMB Control Number 0694-0027. The
public reporting burdens for the new collections of information are
estimated to range between 5 and 10 minutes for the Shipper's Export
Declaration requirement, and 30 minutes per voyage for the Ballast
Water Exchange collection. These estimates include the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collections of information. Send comments regarding these burden
estimates or any other aspect of these collections of information,
including suggestions for reducing the burden, to Bernard Kritzer,
Office of Chemical and Biological Controls and Treaty Compliance,
Bureau of Export Administration, Department of Commerce, Room 2705,
14th Street and Pennsylvania Avenue, N.W., Washington, D.C. 20230.
3. This rule does not contain policies with Federalism implications
sufficient to warrant preparation of a Federalism assessment under
Executive Order 12612.
4. This rule is being issued without notice of proposed rulemaking
and opportunity for comment because Public Law 104-58: (1) provides
that the administrative action under this Act is
[[Page 27257]]
not subject to sections 551 and 553-559 of the Administrative
Procedures Act (5 U.S.C. 551, 553-559); and (2) requires these
regulations to be issued within 30 days of the President's national
interest determination.
5. Under 8 U.S.C. 808(2), there is good cause that notice and
public procedure thereon are unnecessary and contrary to the public
interest. Notice and public procedure are unnecessary because Public
Law 104-58 exempts rulemaking under this Act from the notice and
comment requirements of the Administrative Procedures Act and requires
regulations to be issued within 30 days of the President's national
interest determination. Notice and public procedure are contrary to the
public interest because they would delay allowing the exports that the
President, as authorized by Public Law 104-58, has determined are in
the national interest.
List of Subjects
15 CFR Part 754
Exports, Foreign trade, Forests and forest products, Petroleum,
Reporting and recordkeeping requirements.
15 CFR Part 758
Administrative practice and procedure, Exports, Foreign trade,
Reporting and recordkeeping requirements.
15 CFR Part 762
Administrative practice and procedure, Business and industry,
Confidential business information, Exports, Foreign trade, Reporting
and recordkeeping requirements.
1. The authority citation for 15 CFR part 754 continues to read as
follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
10 U.S.C. 7420; 10 U.S.C. 7430(e); Sec. 201, Pub. L. 104-58, 109
Stat. 557 (30 U.S.C. 185(s)); 30 U.S.C. 185(u); 42 U.S.C. 6212; 43
U.S.C. 1354; 46 U.S.C. app. 466c; E.O. 12924, 59 FR 43437, 3 CFR,
1994 Comp., p. 917; Notice of August 15, 1995 (60 FR 42767, August
17, 1995).
2. The authority citation for 15 CFR part 758 continues to read as
follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 59 FR 43437, 3 CFR, 1994 Comp., p. 917; Notice of August
15, 1995 (60 FR 42767, August 17, 1995).
3. The authority citation for 15 CFR part 762 continues to read as
follows:
Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
E.O. 12924, 59 FR 43437, 3 CFR, 1994 Comp., p. 917; Notice of August
15, 1995 (60 FR 42767, August 17, 1995).
PART 754--[AMENDED]
4. In Sec. 754.2 the following changes are made:
a. in paragraph (a), the phrase ``Reserves paragraph (i) of this
section for a License Exception for certain shipments of samples.'' is
revised to read ``Reserves, paragraph (i) of this section for a License
Exception for certain shipments of samples, and paragraph (j) of this
section for a License Exception for exports of oil transported by
pipeline over right-of-way granted pursuant to section 203 of the
Trans-Alaska Pipeline Authorization Act (43 U.S.C. 1652).''.
b. paragraph (c)(1)(i) is amended by adding the following sentence
at the end: ``The President made a determination on April 28, 1996.'';
and
c. a new paragraph (j) is added to read as follows:
Sec. 754.2 Crude oil.
* * * * *
(j) License Exception for exports of TAPS Crude Oil. (1) License
Exception TAPS may be used to export oil transported over right-of-way
granted pursuant to section 203 of the Trans-Alaska Pipeline
Authorization Act (TAPS), provided the following conditions are met:
(i) The TAPS oil is transported by a vessel documented under the
laws of the United States and owned by a citizen of the United States
(in accordance with section 2 of the Shipping Act, 1916 (46 U.S.C. app.
802));
(ii) All tankers involved in the TAPS export trade use the same
route that they do for shipments to Hawaii until they reach a point 300
miles due south of Cape Hinchinbrook Light and then turn toward Asian
destinations. After reaching that point, tankers in the TAPS oil export
trade must remain outside of the 200 nautical mile Exclusive Economic
Zone, as defined in 16 U.S.C. 1802(6). Tankers returning from foreign
ports to Valdez, Alaska must abide by the same restrictions, in
reverse, on their return route. This condition shall not be construed
to limit any statutory, treaty or Common Law rights and duties imposed
upon and enjoyed by tankers in the TAPS oil export trade, including,
but not limited to, force majeure and maritime search and rescue rules;
and
(iii) The owner or operator of a tanker exporting TAPS oil shall:
(A) Adopt a mandatory program of deep water ballast exchange (i.e.,
at least 2,000 meters water depth). Exceptions can be made at the
discretion of the captain only in order to ensure the safety of the
vessel and crew. Records must be maintained in accordance with
paragraph (j)(3) of this section.
(B) Be equipped with satellite-based communications systems that
will enable the Coast Guard independently to determine the tanker's
location; and
(C) Maintain a Critical Area Inspection Plan for each tanker in the
TAPS oil export trade in accordance with the U.S. Coast Guard's
Navigation and Inspection Circular No. 15-91 as amended, which shall
include an annual internal survey of the vessel's cargo block tanks.
(2) Shipper's Export Declaration. In addition to the requirements
of paragraph (j)(1) of this section, for each export under License
Exceptions TAPS, the exporter must file with BXA a Shipper's Export
Declaration (SED) covering the export not later than 21 days after the
export has occurred. The SED shall be sent to the following address:
Manager, Short Supply Program, Department of Commerce, Office of
Chemical and Biological Controls and Treaty Compliance, Bureau of
Export Administration, Room 2075, Washington, D.C. 20230.
(3) Recordkeeping requirements for deep water ballast exchange. (i)
As required by paragraph (j)(1)(iii)(A) of this section, the master of
each vessel carrying TAPS oil under the provisions of this section
shall keep records that include the following information, and provide
such information to the Captain of the Port (COTP), U.S. Coast Guard,
upon request:
(A) The vessel's name, port of registry, and official number or
call sign;
(B) The name of the vessel's owner(s);
(C) Whether ballast water is being carried;
(D) The original location and salinity, if known, of ballast water
taken on, before an exchange;
(E) The location, date, and time of any ballast water exchange; and
(F) The signature of the master attesting to the accuracy of the
information provided and certifying compliance with the requirements of
this paragraph.
(ii) The COTP or other appropriate federal agency representatives
may take samples of ballast water to assess the compliance with, and
the effectiveness of, the requirements of paragraph (j)(3)(i) of this
section.
5. Section 758.3 is amended by revising paragraph (d)(2) that was
formerly reserved to read as follows:
Sec. 758.3 Shipper's Export Declaration (SED).
(d) * * *
(2) You are required under the provisions of Sec. 754.2(j)(2) of
the EAR.
[[Page 27258]]
PART 762--[AMENDED]
6. Section 762.2 is amended by:
a. Redesignating paragraphs (b)(26) through (b)(34) as (b)(27)
through (b)(35) respectively; and
b. adding a new paragraph (b)(26).
Sec. 762.2 Records to be retained.
* * * * *
(b) * * *
(26) Section 754.2(j)(3), Recordkeeping requirements for deep water
ballast exchange.
* * * * *
Dated: May 28, 1996.
Iain S. Baird,
Deputy Assistant Secretary for Export Administration.
[FR Doc. 96-13708 Filed 5-28-96; 2:33 pm]
BILLING CODE 3510-DT-P
Complete official Federal Register PDF
FR Doc. 96-13707 Northeast Multispecies Fishery; Amendment 7
[Federal Register Volume 61, Number 106 (Friday, May 31, 1996)]
[Rules and Regulations]
[Pages 27710-27750]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13707]
[[Page 27709]]
_______________________________________________________________________
Part III
Department of Commerce
_______________________________________________________________________
National Oceanic and Atmospheric Administration
_______________________________________________________________________
50 CFR Part 651
Northeast Multispecies Fishery; Amendment 7; Final Rule
Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules
and Regulations
[[Page 27710]]
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 651
[Docket No. 960216032-6138-03; I.D. 021296E]
RIN 0648-AI94
Northeast Multispecies Fishery; Amendment 7
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS issues this final rule to implement approved measures
contained in Amendment 7 to the Northeast Multispecies Fishery
Management Plan (FMP) including a resubmitted part of the amendment.
These regulations: Establish an annual target Total Allowable Catch
(TAC) for regulated species; accelerate the current days-at-sea (DAS)
effort reduction program; eliminate most of the exemptions to the
effort control program and revise the requirements for taking time out
of the fishery; add new closed areas; restrict fisheries in the Gulf of
Maine/Georges Bank (GOM/GB) and Southern New England (SNE) regulated
mesh areas having more than a minimal bycatch of regulated species;
establish the current experimental Nantucket Shoals dogfish fishery as
an exempted fishery; modify the permit categories; establish
restrictions on charter/party and recreational vessels; and revise and
expand the existing framework provisions. The intended effect of this
rule is to rebuild multispecies stocks. In addition, NMFS informs the
public of the approval by the Office of Management and Budget (OMB) of
the collection-of-information requirements contained in this rule and
publishes the OMB control numbers for these collections.
EFFECTIVE DATE: July 1, 1996.
ADDRESSES: Copies of Amendment 7, its regulatory impact review (RIR)
and the initial regulatory flexibility analysis (IRFA) contained within
the RIR, and the Final Supplemental Environmental Impact Statement
(FSEIS), and copies of the resubmitted part and its supporting
documents, are available from Douglas Marshall, Executive Director, New
England Fishery Management Council, Suntaug Office Park, 5 Broadway (US
Rte. 1), Saugus, MA 01906-1097. Comments regarding the collection-of-
information requirements contained in this final rule should be sent to
Andrew A. Rosenberg, Director, Northeast Region, NMFS, One Blackburn
Drive, Gloucester, MA 01930-2298 and to the Office of Information and
Regulatory Affairs, OMB, Washington, D.C. 20503 (Attention: NOAA Desk
Officer).
FOR FURTHER INFORMATION CONTACT: Susan A. Murphy, Fishery Policy
Analyst, 508-281-9252.
SUPPLEMENTARY INFORMATION: This final rule implements approved measures
contained in Amendment 7 to the multispecies FMP which was approved by
NMFS on behalf of the Secretary of Commerce (Secretary) on May 16,
1996. Three measures contained in Amendment 7, as originally submitted,
were disapproved by NMFS on behalf of the Secretary when they were
submitted and consequently were not a part of the proposed rule
published on March 5, 1996 (61 FR 8540). Reasons for disapproval of
those measures were given in the proposed rule and are not repeated
here. Two of these measures, a provision that would allow additional
DAS for vessels enrolled in the Large Mesh Individual DAS category and
a 300-lb (136.1-kg) possession limit when fishing in an exempted
fishery with 8-inch (20.32-cm) mesh, were resubmitted by the New
England Fishery Management Council (Council). The latter measure was
again disapproved.
The provision that would allow additional DAS for vessels enrolled
in the Large Mesh Individual DAS category was contained in a proposed
rule published on April 18, 1996 (61 FR 16892). During the public
comment period, no comments were received. This measure was approved by
NMFS on behalf of the Secretary on May 17, 1996, and is also
implemented by this rule.
Details concerning the justification for and development of
Amendment 7 were provided in the notice of proposed rulemaling (61 FR
8540, March 5, 1996) and are not repeated here.
In that notice, NMFS requested the public to comment on all
proposed measures, but to focus on several measures of concern in
particular. After NMFS reviewed the amendment and the public comments
received relative to the amendment and the proposed rule, NMFS
disapproved three additional measures based on its determination that
they are inconsistent with one or more of the national standards of the
Magnuson Fishery Conservation and Management Act (Magnuson Act) or
other applicable law. These measures are: A call-in requirement for
charter/party vessels; counting DAS for gillnet vessels by the amount
of time that gillnet gear is in the water; and a winter flounder
possession allowance when fishing in the Mid-Atlantic regulated mesh
area.
Disapproved Measures
Amendment 7 imposes new restrictions on charter and party vessels.
Such vessels may, under certain circumstances and criteria, fish under
either the recreational or commercial requirements of these
regulations. A call-in requirement for charter/party vessels was
proposed by the Council to provide a way for law enforcement officers
to discern which of these requirements a vessel was subject to. This
measure has been disapproved because NMFS believes that sufficient
means exist to distinguish recreational and commercial activities.
Further, the U.S. Coast Guard (USCG) and NMFS Office of Law Enforcement
have recommended against adoption of this measure because it would not
improve enforceability of the charter/party restrictions. This
recommendation led the Council, in their comments on the proposed rule,
to also recommend against adoption of this measure. Because this
requirement would place a significant administrative burden on the
call-in system with no discernable benefit, it is neither consistent
with National Standard 7 nor Executive Order 12866 and is disapproved.
The second disapproved measure proposed counting gillnet DAS as
time when gear is in the water, rather than time when the vessel is
away from the dock. The Council proposed this measure in an attempt to
resolve perceived inequities in the DAS accounting methods for fixed
gear versus mobile gear. However, the proposal did not adequately
resolve enforcement difficulties of monitoring the amount of time gear
was in the water or the administrative problems in determining baseline
allocations for gillnet Individual DAS category vessels. Moreover, the
Council itself has expressed concern with this measure and has
initiated the process to reconsider the method for counting gillnet DAS
structure. Because the administrative burden of establishing a method
of accounting and allocating DAS is extensive, the efficiency standards
of E.O. 12866 and National Standard 7 would be compromised by the
almost immediate change to the system that the Council is
contemplating. Disapproval of this measure means that DAS for gillnet
vessels will be counted in the same way that DAS are counted for all
other vessels, as time away from port.
[[Page 27711]]
The measure that would have allowed a bycatch of winter flounder by
vessels fishing in the Mid-Atlantic regulated mesh area (10 percent by
weight of all other species on board or 200 lb (90.7 kg), whichever is
less) has also been disapproved. The most recent assessment of winter
flounder advises that fishing mortality should be reduced immediately
to the lowest possible level. Therefore, there is no justification for
treating this regulated species any differently than others in similar
condition. Although the cap on the allowed catch would discourage
vessels from targeting winter flounder, this measure would reduce the
beneficial conservation effect of the DAS program on the winter
flounder resource and is, therefore, inconsistent with National
Standard 1.
Approved Measures
Amendment 7 establishes a procedure for setting annual target TAC
levels for specific cod, haddock, and yellowtail flounder (CHY) stocks
(GB CHY, SNE yellowtail flounder, and GOM cod), and an aggregate TAC
for the other regulated species (pollock, redfish, white hake, witch
flounder, American plaice, winter flounder and windowpane flounder).
The procedure would be used annually to set target TACs, with the
exception of target TACs for the 1996 fishing year (May 1, 1996,
through April 30, 1997), which are set as follows:
Table 1.--1996 TAC Specifications
------------------------------------------------------------------------
1996
Target
Species/area TACs
(metric
tons)
------------------------------------------------------------------------
Georges Bank cod.............................................. 1,851
Georges Bank haddock.......................................... 2,801
Georges Bank yellowtail flounder.............................. 385
Gulf of Maine cod............................................. 2,761
Southern New England yellowtail flounder...................... 150
Aggregate for remaining regulated species..................... 25,500
------------------------------------------------------------------------
DAS allocations are reduced in two equal increments at the start of
the 1996 and 1997 fishing years from current levels to the full 50
percent reduction called for originally in the final year of Amendment
5 to the FMP. In addition, because the effective date of this rule is 2
months after the start of the 1996 fishing year, which commenced on May
1, 1996, 1996 DAS allocations are prorated based on the amount of time
remaining in the 1996 fishing year, or 83 percent (10 months/12
months).
Amendment 7 eliminates the current exemptions to the DAS program
(vessels 45 ft (13.7 m) and less, limited access Hook-Gear and Gillnet
vessels) and allocates either Individual DAS or Fleet DAS to these
vessels, except for vessels 30 ft (9.1 m) or less in length. Limited
access vessels 30 ft (9.1 m) or less in length may choose either to
fish under the DAS program or be restricted to a possession limit of
CHY up to a maximum combined weight of 300 lb (136.1 kg).
This rule eliminates the existing requirement for vessels in the
Fleet DAS category to take blocks of time ``out of the multispecies
fishery.'' It also eliminates the layover days currently required after
completion of a multispecies trip. However, all vessels subject to the
DAS effort control program are required to take one 20-consecutive-day
block of time out of the multispecies fishery between March 1 through
May 31. Vessels 30 ft (9.1 m) or less in length issued a Small Vessel
permit and vessels issued an open access Handgear permit are not
allowed to fish for, possess, or land regulated multispecies between
March 1 and March 20.
The existing time/area closures to sink gillnet vessels specified
to reduce harbor porpoise bycatch are now also closed to other gear
types as part of the effort reduction program. These areas are known as
the Northeast Closure Area, the Mid-Coast Closure Area, and the
Massachusetts Bay Closure Area. Because Small Mesh Area 1 lies entirely
within the Mid-coast Closure Area, the season termination date for this
exemption is changed from November 15 to October 31, which coincides
with the closure of the Mid-coast area.
This final rule prohibits vessels from fishing in the GOM/GB and
SNE regulated mesh areas, unless they are fishing in an authorized
multispecies fishery, under a scallop DAS, or in an exempted fishery.
An exempted fishery is one in which it has been determined that there
is a minimal bycatch of regulated species.
The existing Nantucket Shoals experimental dogfish fishery has been
found to meet the criteria for this exemption. This rule permanently
exempts that fishery from June 1 through October 15.
Because the exemptions to the DAS program are removed by the
amendment, some limited access permit categories have been eliminated
and vessels in those categories have been reassigned to an appropriate
category. A new category is established for vessels in the current
Hook-Gear open access category and an opportunity to qualify for a new
limited access Hook-Gear permit under specified criteria is granted.
New limited access permit categories are also established for vessels
electing to fish with large mesh. Vessels reassigned as a result of
this rule will have 45 days from the date of publication of this rule
to change their 1996 permit category.
Three new open access permit categories established are Handgear,
Charter/Party and Scallop Multispecies Possession Limit, each with
specific possession and gear restrictions.
This rule imposes several new restrictions for recreational and
charter/party vessels, including a 20 inch (50.8 cm) minimum fish size
for cod and haddock for the first year of the plan, increasing to 21
inches (53.3 cm) in the second year, a prohibition on the sale of
multispecies finfish, and a 10 fish possession limit on cod and
haddock, combined, for individual recreational anglers.
The FMP's existing framework provisions are revised to remove the
10 percent cap on annual reductions in fishing mortality and to allow
implementation of measures to protect right whales and other marine
mammals through the framework process. An annual process to set target
TACs, review progress towards fishing mortality goals and to make any
necessary changes in the management program is also established.
The Mid-Atlantic regulated mesh area is redefined to include all
New York and Connecticut state waters.
Vessels fishing in the SNE regulated mesh area are authorized to
retain a bycatch of skate or skate parts up to 10 percent of the total
weight of other fish possessed on board.
A provision is added that allows the costs of observer coverage to
be funded by sources other than NMFS.
The haddock possession limit is increased from 500 (227 kg) to
1,000 lb (453.6 kg) for vessels fishing under a multispecies DAS. The
tote and box volumetric equivalency measure for determining the weight
of possession limits is eliminated, instead, compliance with possession
limits will be determined by shoreside weighing. However, vessels will
be required to carry one tote on board for use by USCG boarding parties
to estimate possible excessive catches.
Comments and Responses
Written comments were submitted by the Associated Fisheries of
Maine, Offshore Mariners Association, Inc., Gloucester Fishermen's
Wives Association, Massachusetts Fishermen's Partnership, Gloucester
Fishermen's Committee, Maine Department of Marine Resources (DMR),
Wildlife Habitat Preservation Association, Inc.,
[[Page 27712]]
Senator Judd Gregg, Senator Bob Smith, Senator Olympia J. Snowe,
Senator William S. Cohen, Congressman Patrick J. Kennedy, Seafarers
International Union of North America, Conservation Law Foundation, Mass
Audubon Society, The Groundfish Group of Associated Fisheries of Maine,
Associated Fisheries of Maine, Maine Fishermen's Wives Association,
Federation of Inshore Seafood Harvesters, Darling Marine Center of the
University of Maine, New Bedford Seafood Coalition, Massachusetts State
Senator Bruce Tarr, Gloucester United, Vessel Services Inc., the New
England Fishery Management Council (NEFMC), Center for Marine
Conservation, Environmental Defense Fund, Cape Cod Commercial Hook
Fishermen's Association, Resource Trading Co., King & Sons Fishing Co.,
Inc., Cape Ann Gillnetters' Association, Action, Inc., Wellspring
House, Inc., Massachusetts Lobstermen's Association, Inc., Connecticut
Department of Environmental Protection (DEP), the Marine Mammal
Commission, and approximately 290 individuals.
1. Comments in Favor of Approval of Amendment 7
Comment 1: An association and several environmental organizations
stated that Amendment 7 should be approved, and 136 individuals stated
that Amendment 7 should be approved without change. Many commenters
expressed concern for the health and viability of the resource and
urged the Secretary not to give in to pressure to weaken, modify or
otherwise deviate from the plan.
Response: Most of the measures proposed in Amendment 7 have been
approved.
2. Comments on Elimination of the Open Access Possession Limit and
Hook-Gear-Only Permit Categories
Comment 2: Several commenters opposed elimination of the
Possession-Limit permit category and/or the 500-lb (226.8-kg) allowance
of regulated species associated with this permit. These comments are
summarized as follows:
A commenter stated that he invested in his vessel while fishing
under the 500-pound (226.8-kg) possession limit in the open access
category and that under Amendment 7, he will lose his right to do so,
due to the elimination of the open access possession limit permit.
An association stated that vessels in the Possession Limit permit
category that may have qualified for a limited access permit under
Amendment 5 should be allowed to prove their eligibility and move into
a DAS category. The commenter further explained that a few vessels
opted for a Possession Limit permit though their history would have
qualified them for a limited access permit under the DAS program. The
association further stated that it would have been impossible for these
vessel owners to know that this permit category would be eliminated at
some future date.
Another commenter stated that elimination of the Possession Limit
permit category denies him access to the whiting fishery. He stated
that his two vessels surrendered their limited access multispecies
permits during 1996, because he lengthened his vessels beyond the
upgrade restrictions of the multispecies FMP to maximize their
productive capacities before the effective date of Amendment 5 to the
Atlantic Mackerel, Squid and Butterfish FMP (which allows no increase
in size after implementation). He stated that since the vessels only
fished a few months each year for whiting, he had planned to continue
to do so under the Possession Limit category.
Another commenter stated that under Amendment 7 those fishers
formerly fishing for whiting and other small mesh species in the
experimental whiting grate fishery, to use as bait under the Possession
Limit category will not be able to continue this practice. He stated
that this gives bluefin tuna fishers with a limited access multispecies
permit an unfair advantage.
Congressman Patrick J. Kennedy (RI) forwarded an association's
petition containing 98 signatures and 23 individual letters, all
concerned with the elimination under Amendment 7 of the possession
limit of regulated species bycatch allowed when fishing for non-
regulated species out of the DAS effort reduction program. The
association also forwarded the petition and letters directly to the
Director, Northeast Region, NMFS (Regional Director). They further
stated that the marketable bycatch of regulated species would be
wastefully discarded. Twenty-three of the commenters stated that they
would have to fish day and night to fully utilize the full 24 hours of
the groundfish day DAS. They all sought reinstatement in Amendment 7 of
the possession limit of regulated species when fishing for non-
regulated species out of a DAS effort control program.
Another commenter stated he does not qualify for the new limited
access hook permit, because he did not land 500-lb (226.8-kg) of
regulated species during the qualifying year, which is one of the
qualifying criteria. He said that it is arbitrary and unfair to make
just that permit category meet certain criteria. He further asked
whether any consideration was given for illness or investments. He
added that the labor intensive, environmentally sound hook-fishery had
no negative impacts on the control of future effort.
The Maine DMR commented favorably on the open-access handgear-only
permit category provision of Amendment 7. It added that this permit
category provides a lowcost, egalitarian point of entry for new
participants in the fishery within sensible conservation rules.
The Maine DMR commented in opposition to the eligibility
requirements for vessels desiring to qualify for the new limited access
hook-gear permit-category, specifically, the requirement that
applicants must have filed logs for their vessels by January 26, 1996
for the period June 1, 1994-June 1, 1995. It stated that since NMFS has
allowed logbook filers to file late this year as part of a well-
publicized education effort designed to achieve high compliance by next
year, it is unreasonable and inequitable to disallow the same extension
to those in the open access hook permit category, which was less
intensively regulated under Amendment 5. It explained that participants
in this category are less likely to have understood and complied with
log requirements.
Response: The Council and NMFS are aware that certain participants
in the groundfish fishery may be affected by the elimination of the
open access possession limit permit category, but NMFS has determined
that conservation needs outweigh the negative impact on certain
individual fishers.
The 500-lb (226.8-kg) regulated species catch allowance is
eliminated by this rule. The control date for entry into the
multispecies fishery was February 21, 1991, at which time the public
was put on notice that future entry into the fishery could be limited
and that those investing in the fishery after that date were doing so
at risk. The condition of the stock complex has declined since that
time and more restrictive measures have been implemented in Amendments
5 and 6 to the FMP. Amendment 7 eliminates the 500-lb (226.8-kg)
possession allowance in part because of its open-access nature. While
Amendment 7 imposed significant restrictions on the directed
multispecies fleet through DAS reductions, allowing a potentially
unlimited number of vessels to land 500 lb (226.8 kg) of regulated
species per trip would be inconsistent with the goals of the FMP.
Regarding the commenter's concerns about being ``shut out'' of the
whiting
[[Page 27713]]
fishery as a result of disapproval of the Limited-Access Possession
Limit permit category, NMFS disapproved that category because of
several flaws that were described in the proposed rule. The Council has
reconsidered the disapproval of this category and will resubmit a
revised proposal that, if approved, would allow open access to the non-
regulated multispecies fisheries, i.e., whiting, red hake and ocean
pout. One of the improvements made to the permit proposal by the
Council is the designation as an open access permit, which exempts
vessels in this category from the upgrade requirements.
As to eligibility requirements for the new limited-access hook-gear
permit category, Amendment 7's deadline for filing logs for the period
June 1, 1994-June 1, 1995 was established as January 26, 1996, for
purposes of qualifying into the fishery. This deadline is much more
liberal than the Council's requirement that all logs be filed in a
timely manner, i.e., within 15 days of the fishing trip. Additionally,
those applicants denied a new limited-access hook-gear permit may
appeal any denial under the multispecies regulations.
And finally, the commenter concerned about qualifying for the Hook-
Gear-Only permit will have two options: (1) A vessel owner may elect to
fish with hand-held gear only and land up to a total of 300 lb (136.1
kg) of CHY, or (2) a vessel owner may elect to apply for the hook-only
limited access permit and, if denied, may appeal the denial on the
basis that circumstances beyond the applicant's control prevented
attainment of the qualifying criteria.
3. Comment on the Framework Provision for Annual Adjustments to TACs
and Restrictions
Comment 3: The Maine DMR stated that a 2-year adjustment process,
with frameworks in the interim, would provide a more constructive and
science-based process than the annual adjustment process.
Another commenter stated that the tight timeline established in the
framework adjustment process that provides only 1 month prior to the
beginning of a fishing year to adapt to the adjusted measures is
insufficient.
Response: The changing conditions of fish stocks warrant that
frameworking occur at least annually, while considering factors such as
the most recent landings data as it compares with the previous year's
target total allowable catches. The timeline established for the
framework adjustment process was decided on after consideration of
comments and public input during public hearings on the Amendment.
Similarly, the adjustments that may be proposed as a result of the
framework process will undergo a public participation period, during
which sufficiency of notice prior to the fishing year can be factored
in as the Council deliberates on the adjustments. The alternatives to
this timeframe are to reduce the time period for public input or, to
begin the adjustment process earlier in the year. This latter
alternative is not desirable because important data and information
about the fishery that should be considered will most likely be
unavailable earlier in the year.
In addition, while a final rule may be published 1 month prior to
its effective date, this process begins 6 months in advance of the next
fishing year to allow the public several opportunities to participate
in development of measures, to become aware of changes that would
result from implementation, and to prepare for implementation in its
final form.
Comment 4: An environmental organization stated that the process
for annual review and adjustment of management measures described in
Sec. 651.40(a) of the proposed rule is too open-ended and likely to
result in a stalemate between the Council and the Regional Director.
Under Sec. 651.40(a)(6), if the Council fails to submit a
recommendation to the Regional Director that meets the FMP goals and
objectives, and the Council also rejects all other options developed by
the Multispecies Monitoring Committee, then the Regional Director must
resort to emergency regulations and/or a Secretarial amendment.
The commenter recommended that Sec. 651.40(a) be disapproved (in
whole or in part) until it includes default annual adjustments that
reflect how the actual catch compares to the target TACs or target
catch rates. It opines that the catch of at least cod and yellowtail
flounder in the 1996 fishing year is likely to far exceed the target
TACs, so that DAS reductions initially assigned for the 1997 fishing
year would be grossly inadequate to reduce fishing mortality to
F0.1. The commenter included suggested language for a default
annual adjustment specification, which it feels is needed because the
Council has a history of being unable to make decisions quickly for
conservation purposes that are unpopular with commercial fishermen.
Response: If the resource continues to decline in the short-term,
NMFS expects the Council to be confronted with difficult decisions
regarding adjustments to measures, just as it was confronted by
difficult options for this Amendment. The framework provision of the
FMP was approved because NMFS believes the Council will submit an
appropriate recommendation even if those of the Monitoring Committee
are rejected. The default mechanism, in terms of overall resource
protection, is to keep present restrictions in place. To disapprove
this measure would leave no adjustment mechanism in place.
4. Comments on the Need for Amendment 7 and the Scientific Basis for
the FMP
Comment 5: A commenter stated that the proposed rule identifies
only a GB and SNE yellowtail flounder stock in Table 1 of its
specification of 1996 TACs. He points out that NMFS, in its ``Status of
Fishery Resources off the Northeastern U.S. Technical Memorandum-NMFS-
NE-108,'' continues to identify and characterize a Cape Cod and mid-
Atlantic stock as well. His concern is that this omission may lead to
inappropriate catches based solely on the status of the GB and SNE
stocks. He recommends that NMFS issue a separate TAC for at least the
Cape Cod stock of yellowtail flounder for 1996 and that the Northeast
Multispecies Monitoring Committee consider continuing this practice in
subsequent TAC specifications.
Response: Tagging studies and geographical patterns of landings and
survey data indicate discrete yellowtail stocks in GB, SNE, Cape Cod
and the Mid-Atlantic. However, the Middle Atlantic and Cape Cod
yellowtail stocks have historically been very small relative to the SNE
and GB stocks, respectively. While NMFS recognizes that this may no
longer be the case, the TACs specified are conservative. The quality of
available assessment data for the Mid-Atlantic and Cape Cod stocks is
insufficient to permit a quantitative estimate of stock abundance,
exploitation rates or TACs. The status of all of these stocks is
essentially the same, in that they are all overexploited. Therefore, it
is appropriate to include yellowtail flounder from Cape Cod with the
Georges Bank TAC for that species and yellowtail flounder from the Mid-
Atlantic with the Southern New England TAC for that species for
management purposes. The Council will have the option of including
these stocks within existing TACs or to specify a separate TAC for the
Cape Cod stock, if necessary. At present there seems to be little
incentive for directed fishing on these stocks because of their low
abundance.
Comment 6: An organization stated that Amendment 7 is unnecessary
at this time, and, in fact, Amendment 5 is
[[Page 27714]]
working and needs more time to reach the goals of the Council and NMFS.
Response: Amendment 5 was designed to correct the overfished
condition on the Multispecies Fishery by a 50 percent reduction of
fishing mortality over a 5 to 7-year period. However, by the time this
amendment took effect (in 1994), spawning stock biomass levels for GB
cod, haddock and yellowtail were at or near historic lows and
reductions in fishing mortality of more than 50 percent were needed
immediately to arrest further declines of GB cod and yellowtail
(advisory presented at the August 1994 Stock Assessment Review
Committee (SARC) plenary). By 1993, landings for GB cod, haddock and
yellowtail had declined to 30 percent of MSY; 1994 landings were
projected to decline to 23 percent of MSY; and further declines were
projected for 1995. As reported at the Plenary, GB haddock and
yellowtail stocks have collapsed--and it remains clear that to avert
stock collapse for GB cod, and to begin the rebuilding process, greater
reductions in fishing mortality over a shorter period of time are
necessary than provided for in Amendment 5.
Comment 7: Senator Olympia J. Snowe (ME) and Senator William S.
Cohen (ME) requested that the Secretary establish an independent panel
to review the science that is the basis of this plan. They further
suggested that such a review should be conducted during the first year
of the plan's implementation, and its results used as adjustments for
the second year of the plan are formulated. Additionally, they
requested that the peer review include a reassessment of the science
that supports the FMP and specifically, they would require that
scientific research must address the effectiveness of different
management tools including seasonal area closures and gear
modifications like mesh size.
Response: An intensive peer-review process already exists, through
the Stock Assessment Workshop (SAW). Assessments are prepared by
subcommittees including scientists from state and Federal agencies and
academic institutions, reviewed by the Stock Assessment Review
Committee (SARC), and presented to managers at SAW Plenary sessions.
Industry or other interested parties are welcome to participate. The
SARC, and the Multispecies Monitoring Committee (MMC), created under
the terms of Amendment 7, will be available for periodic reviews of the
science including evaluations of the relative effectiveness of
different management tools. The Council can instigate such a review
through its Science and Statistical Committee.
Comment 8: An environmental organization stated that the measures
specified in the proposed rule cannot result in the 80-percent
reduction in fishing mortality rate (F) that is needed to reach the
Amendment's target of F0.1, because the DAS reduction specified in
Sec. 651.22(b) for the 1997 fishing year is only 50 percent from the
initial baseline. The F reduction that will result from a 50-percent
reduction in DAS is certain to be less than 50 percent because of
compensatory increases in other aspects of fishermen's efforts. It
added that no analyses were presented to the Council during development
of Amendment 7 that suggested that other existing or proposed
management measures for groundfish (including the closed areas) would
accomplish the remaining required reduction in F.
Response: NMFS understands that the DAS reduction target is 50
percent at the end of a 2-year timeframe. Analyses of the effects of
the closed areas implemented by this rule were presented to the Council
which projected that an additional 30 percent reduction in F would be
realized through modifications which have been made to time/area
closures and inclusion of additional vessel classes under DAS limits.
Also, the Council will adjust the target TAC (upward or downward) as
stock size changes are observed and will adjust the management measures
as needed to keep catches below the target.
Comment 9: An environmental organization stated that improvements
in spawning stock biomass (SSB) expected under the assumptions built
into the proposed rule should be clearly predicted, and used as a
secondary yardstick for the performance of the overall program. Any
time actual estimated SSBs fall significantly below predicted SSBs,
reanalysis of SSB and population projections should occur, and
emergency measures should be adopted to restore progress toward
threshold SSBs. For this purpose of establishing a trigger for
reanalysis and emergency measures, ``fall significantly below'' should
be defined precisely in advance as a percentage shortfall as low as
possible approaching 10 percent, but above the statistical margin of
error.
Response: Such questions would fall within the purview of the SARC
and the MMC. NMFS expects that the relative effectiveness of different
measures will be examined routinely as part of the monitoring process
for Amendment 7.
Comment 10: An environmental organization stated that tests should
be designed to measure the efficacy of each important management
measure, such that its contribution to the overall mortality reduction
program can be determined, and that such additional mortality reduction
measures can be implemented with greater certainty when target TACs are
exceeded. Examples include the seasonal closure of certain areas, which
will likely reduce seasonal mortality, but which may or may not reduce
annual fishing mortality, and which may or may not enhance spawning
success and recruitment to the overall population.
Response: Again, such questions would fall within the purview of
the SARC and the MMC.
Comment 11: An environmental organization stated that GOM cod
stocks remain overexploited and are inadequately addressed in the
proposed rule. It added that the proposed rule establishes a biological
reference point for GOM cod with fishing mortality equal to F(max)--
potentially too high for this stock, especially in light of the
uncertainty in the relationship between fishery management practices
and actual fishing mortality--and a target TAC that is very high.
Response: Fishing at Fmax (0.27) for GOM cod would represent a 70-
percent reduction in fishing mortality from 1993 levels, and is in fact
below the overfishing definition level (F20%=0.35) for this stock. NMFS
believes, based on the best scientific information, that specification
of a TAC corresponding to the Fmax level for this stock is appropriate
as a first step in the rebuilding process. Effects and implications
would be subject to review by the MMC.
5. Comments on the Area Closures and Time Periods
Comment 12: The Maine DMR stated that the GOM closures should be
replaced with targeted closures of specified areas based on spawning,
pre-spawning and juvenile fish habitats. DMR added that the proposed
GOM closures are unfocused and a relatively ineffective conservation
tool that will have serious impacts on its industry.
Senator Olympia J. Snowe (ME) and Senator William S. Cohen (ME)
urged that any additional closures be carefully targeted to protect
specific areas with value as spawning, pre-spawning, and juvenile fish
habitats.
A commenter stated that the November and December (Mid-coast)
closure may have validity for gillnets as pertains to harbor porpoises,
but that draggers have zero interaction with harbor porpoises.
A commenter stated that the November and December closure time
[[Page 27715]]
period would cause New Hampshire day boats (trawlers) to tie to the
dock during this 2-month period.
Another commenter stated that the Mid-coast closure area is subject
to an additional 30-day timeframe as compared to the other two closure
areas. The Mid-coast small vessel fleet thus bears an additional burden
when compared to other areas with 30-day closures.
Response: The GOM closures were adopted as a default mechanism to
meet Amendment 7 goals while other possible closed areas were
investigated. Because the purpose of the GOM closed areas is to reduce
fishing mortality by the shortfall created when DAS reductions alone
were insufficient (and not solely to protect harbor porpoises), the
impacts on the industry are acknowledged and incorporated into the
analysis of impacts of Amendment 7. The GOM closures, which were
previously in place to protect harbor porpoises, now serve a dual
purpose until alternative areas are identified. A Council subcommittee
has been assigned to examine alternative areas having equivalent or
greater value in reducing fishing effort and will consider changing the
area closures through the framework adjustment process.
Amendment 7 does not require vessels to tie to the dock during the
closure periods, but many smaller vessels are not able to fish safely
offshore, beyond the GOM area closures. Again, the purpose of the
closed areas is to reduce fishing effort by the shortfall created when
DAS alone were insufficient.
An alternative to the closed areas was to reduce DAS further, but
that alternative was rejected by the Council based, in part, on public
and industry comment which indicated a preference for flexibility.
During the GOM closures, small vessel owners have the option of
tying to the dock, seek alternative ports or alternative fisheries. In
regard to the 2-month time period, although this closure is for a
longer period of time, it occurs at a time of the year when weather is
a factor and fishing activity is limited. Thus, to achieve equivalent
conservation benefit, a longer period of time is necessary as compared
to a closure occurring in the spring, summer or early fall months.
Comment 13: A commenter stated that the larger vessels, which
account for the most groundfish harvesting capacity and production,
have the capability to merely exit the area closures and fish outside
the boundaries thus not contributing to any effort reduction or fishing
mortality reduction. The commenter further stated that the inshore and
small boat sector thus bears the most burden of the closures and added
that most of these vessels must now enroll in the DAS program due to
elimination of the 45-ft (13.7-m) exemption. The commenter summarized
that this is unfair and inequitable amongst users and participants and
creates an unfair allocation circumstance.
Response: Amendment 7 implements a broad set of measures affecting
all sectors of the industry necessitated by severe overfishing on cod,
haddock and yellowtail flounder. Larger vessels, unlike small inshore
vessels, contribute to the effort reduction goals because they are
subject to additional closed areas offshore where concentrations of
multispecies are traditionally found. Unlike the inshore areas, which
are closed for limited periods, these offshore areas are closed
permanently. Amendment 7 eliminates some of the exemptions from the DAS
program that were established by Amendment 5 to ensure that all vessels
contribute toward the rebuilding goals. Amendment 5 tried to alleviate
some of the burden on small vessels, but it is no longer possible to do
this without sacrificing the more rigorous conservation objectives of
Amendment 7.
Comment 14: A commenter noted that Amendment 7 does not exempt mid-
water trawls from the closed areas, but authorizes their exemption at
some future time based on the analysis of observer data. The commentor
added that in a report given by the Regional Director to the Council,
the Regional Director stated that preliminary data showed zero bycatch
of groundfish in mid-water trawls. If the final analysis bears this
out, the commenter requested that mid-water trawls be exempt from the
closed areas. The commentor added that such an exemption would not only
address the high cost of rerigging but would also address the
possibility of being precluded from large areas of potential herring
catch grounds. The commentor indicated a willingness to alleviate any
enforcement concerns by placing Vessel Monitoring Systems (VMSs) on all
of its catcher vessels.
The Maine DMR strongly urged NMFS not to exempt mid-water trawl
gear from Amendment 7 without first determining that this gear cannot
be fished to take significant quantities of groundfish. It added that
it had enough anecdotal evidence to suggest that skilled skippers with
sophisticated net-monitoring technology can fish these nets very close
to the bottom. It reiterated that its concern is not that mid-water
trawls can be fished very cleanly but that they may have the potential
to direct on regulated species.
Response: Amendment 7 does not specifically exempt mid-water trawl
gear from the GOM area closures, but allows this gear to be exempted in
the future. Even if mid-water trawlers were allowed in the closed
areas, they would not be allowed to possess any regulated species,
therefore they would have no incentive to direct on regulated species.
6. Comments on Minimum Mesh and Fish Sizes
Comment 15: A commenter stated that minimum fish sizes are
responsible for the collapse of the New England stocks of cod, haddock
and other species of groundfish. He added that prior to minimum size
regulations, quotas and trip limits worked quite well and all that was
needed to maintain the stocks was 5\1/2\-inch (13.97-cm) square mesh
and no minimum sizes.
Response: Many members of the industry and the public favor minimum
sizes because allowing fish to grow to a particular size prior to
harvest can increase yields and enhance spawning. The need for fishing
mortality reductions is paramount, however, and minimum size limits do
not necessarily translate into such reductions. Possession limits and
quotas were considered during the development of Amendment 7 and were
put forth in the public hearing document under Alternative 4. Public
response during the hearing phase was opposed to the use of quotas and
trip limits.
Comment 16: The Maine DMR stated that Amendment 7 does not address
increased mesh and fish sizes, and suggests that these options should
be integrated more fully into the plan, including new conservation
engineering. It said that NMFS' concern about the lack of selectivity
studies for mesh larger than regulation size (6 inches or 15.24 cm) may
be somewhat allayed by Canadian studies showing an approximately linear
relationship between mesh and fish sizes. It added that it is
reasonable to assume that this relationship holds for the slightly
larger meshes at issue here (7-inch (17.8-cm) gillnets and 8-inch
(20.3-cm) codends).
Another commenter stated that if 7-inch (17.8-cm) square mesh were
used exclusively for regulated species, there would be no need for
diamond mesh and possibly no need for a minimum fish size, resulting in
no discards.
A third commenter stated his concern that the provision pertaining
to adjustments of minimum fish size, originally contained in Amendment
5, has never been adopted despite ``reports of high flatfish discard
rates in
[[Page 27716]]
management areas where use of square mesh is mandatory.''
Response: Increased mesh sizes and increased fish sizes were
addressed and discussed as an option in the draft public hearing
document but were not adopted by the Council. Amendment 7 continues the
established minimum fish sizes, except for some increased fish sizes
for recreational and charter/party vessels not fishing under a DAS.
Increased mesh and fish sizes can be accomplished under this plan
through framework action. The use of mesh size as the sole measure to
control fishing mortality is problematic for a variety of reasons. One
reason is the wasteful and unlawful practice of using small mesh liners
or other devices to circumvent conservation regulations. Another is the
likelihood that a net will become clogged during long tows, rendering
the mesh increase ineffective. Nevertheless, 7-inch (17.8-cm) mesh
would contribute toward conservation and Amendment 7 includes
incentives to use larger mesh.
Use of square mesh is required in juvenile protection areas where
concentrations of small cod and haddock are usually found. Square mesh
is designed to allow round-shaped fish to escape but it is not as
effective an escapement mechanism for flatfish. Several research
experiments on gear conservation methods (some financed by the
Saltonstall-Kennedy Grant program administered by NMFS) are underway to
devise a net configuration that will enhance escapement of both
juvenile flat and roundfish. Meanwhile, the Council has the option of
increasing minimum fish and mesh sizes through framework actions, and
may elect to do so in the future.
7. Comments on the TACs
Comment 17: An association stated that TACs should differentiate
between hook fisheries and other commercial fisheries, and that one TAC
should be established for the longline and jig fishery and another TAC
should be established for the other commercial groundfish fisheries.
Response: The public hearing document did consider allocating DAS
by gear group. Note that DAS can be considered an extension of quotas,
by gear. This alternative was rejected by the Council; however, it may
be reconsidered at a later time.
Comment 18: Senator Bob Smith (NH) stated that TAC levels have been
set unrealistically low. He and other commenters argued that such low
levels provide larger vessels with the opportunity to consume the TAC
prior to the small-vessel fleet having an opportunity to use their DAS.
Senators Olympia J. Snowe (ME) and William S. Cohen (ME) stated
their concern about equity for smaller vessels and added their concern
that Amendment 7 goes too far, too fast.
An association stated that the only way a target TAC could
alleviate a ``derby-style'' fishery and give the same opportunity to
all size class vessels throughout the year would be to allow fishing to
continue after the target is reached. The association asked how this
achieves conservation?
A commenter stated that the proposal of allowing extra days for
using larger mesh while the majority uses regulated mesh makes no sense
when a TAC is in place. He added that the vessels selecting this large
mesh alternative in all likelihood will never get to use extra days
assigned them.
Another commenter stated that large vessels would have access to
three different TACS under Amendment 7 while most of the New Hampshire
small-vessel fleet would have access to only the GOM TAC.
Response: TAC levels were established based on the Council's
Amendment 7 objective to reduce fishing mortality to F0.1, which
translated to the established TACs. Additionally, Amendment 7
establishes a target TAC system rather than one with absolute TACs.
Should a target TAC be exceeded, the Council will respond by adjusting
the management measures in the following fishing year to keep catches
below the target. Fishers should understand that should the TACs be
reached during the fishing year, the fishery will not necessarily
close, but rather, adjustments to the measures will be made for the
following fishing year taking into account the impact of the
adjustments on different sectors of the industry. ``Target'' TACs
rather than an absolute TAC were adopted in part to provide equity and
fairness to the different types of participants in the fishery. It
allows the Council to take into account impacts of adjustment measures
on different sectors of the industry. The Council will adjust the
target TAC (upward or downward) as stock size changes are observed and
will adjust the management measures as needed to keep catches below the
target. This should alleviate a ``derby-style'' fishery and give the
same opportunity to all size class vessels throughout the year. Also,
the small-vessel fleet is not restricted by Amendment 7 to fishing in
any one area but may move vessels to areas where different TACs apply.
Comment 19: An environmental organization stated that the F
0.1 target and resulting 1996 TAC for GB haddock are too high for
the rebuilding needs of the stock and should be reduced. It said that
at this fishing rate, the probability of GB haddock reaching the
spawning stock threshold within 10 years is calculated to be only 22
percent. It added that the 1,000-lb (454-kg) trip limit for haddock,
contained in Sec. 651.27(a) of the proposed rule, is more restrictive
because it is not expected to result in landings as high as the
specified TAC for this stock. Thus, a discrepancy exists between the
1996 TAC for this stock and the management measures, as well as between
the 1996 TAC and the rebuilding goal. It urged NMFS to correct this
discrepancy by determining a fishing mortality rate for GB haddock that
is likely to achieve the spawning stock threshold within ten years, and
then to respecify the 1996 TAC for this stock. It further stated that
if this is not done, the 1996 TAC will be used to argue for less
restrictive management measures that will not achieve the rebuilding
goal of Amendment 7 for this stock. It opined that future TACs will be
set too high if the F target for this stock is not reduced.
Another environmental organization opposed the increase in trip
limits for haddock from 500 lb (226.8 kg) to 1,000 lb (453.6 kg). It
added that the GB haddock fishing mortality target and target TAC are
set significantly too high and that a specific (and lower) fishing
mortality target and target TAC should be set for GOM haddock. It
reasoned that a higher trip limit simply increases the incentive to
continue fishing when and where haddock bycatch occurs and at some
level creates an incentive to fish specifically to target haddock to
catch the trip limit.
The organizations made these specific points:
(a) The F0.1 fishing mortality target and the resulting 2,800
mt 1996 target TAC for GB haddock are unacceptably high. Moreover,
these targets result in only a 22 percent probability of rebuilding to
the 20-percent SSB level within 10 years (NEFMC, 1995, Draft Proposals
for Amendment 7 to the Northeast Multispecies Plan, p.12). The answer
to the Council's perceived ``problem'' that the haddock trip limit may
be too low to allow the fleet to catch the entire GB haddock target TAC
is to reduce the GB haddock fishing mortality target and target TAC to
much lower levels that would allow at least a 50 percent probability of
rebuilding of this stock to the 20 percent SSB levels within a minimum
of ten years.
(b) Given the extremely poor condition of the GOM haddock stock, a
specific and very low fishing mortality target and initial target TAC
should be
[[Page 27717]]
set for this stock that allows a similar rebuilding timetable and
probability. The 21st SAW Advisory Report on Stock Status concluded
that GOM haddock biomass declined to nearly undetectable levels over
the last two or three decades (p.28). Under this circumstance, it is
inappropriate to manage GOM haddock with other regulated groundfish
under an aggregate fishing mortality target of F0.1 and a single
aggregate target TAC of 25,500 mt in 1996.
Response: These issues were addressed at the April, 1996 meeting of
the New England Fishery Management Council by both the Council and the
Regional Director. The 1996 TAC for this stock is a maximum, not a
quota to be achieved, and NMFS feels that coupled with other haddock
conservation measures, the haddock trip limit and TAC are not
inconsistent. Under the annual frameworking provision, NMFS and the
Council will reconsider whether various measures related to the haddock
fishery are sufficient to meet the objectives of Amendment 7.
NMFS is advocating very conservative management strategies for this
stock to promote prospects for stock rebuilding, i.e., to restore SSB
to certain levels. The haddock trip limit was established as a
disincentive to target this species on a trip or tow. NMFS believes
that an increase from 500 lb (226.8 kg) to 1,000 lb (453.6 kg) is not
effectively an increase, considering that the former measurement by
totes has been eliminated. That volumetric measure, in practice,
allowed vessels to land more than the 500-lb haddock trip limit because
volumetric equivalent measures proved to be too generous. Any
additional increase beyond 1,000 lb (453.6 kg) in the haddock trip
limit would have to be accompanied by compensatory measures. A trip
limit will remain in place unless and until alternative restrictions
that achieve the same result are developed and implemented.
Comment 20: An environmental organization stated that the aggregate
TAC for the remaining regulated species (other than cod, haddock, and
yellowtail flounder) as specified in the proposed rule is set too high
to prevent overfishing of at least some of the other regulated species.
It said that the aggregate TAC was set ``at levels corresponding to
recent fishing mortality rates to ensure that effort is not redirected
to these stocks.'' It argued that the report of the 21st SAW indicates
that pollock, GB winter flounder, and both stocks of windowpane
flounder are currently at or near record low levels of abundance and
biomass, while redfish have continued to fail to rebuild. It said that
this indicates that recent fishing mortality rates have been too high
on at least these four additional species. Therefore, continued fishing
at recent rates will fail to prevent overfishing and to allow
overfished stocks to rebuild. At a minimum, it argued, the aggregate
TAC for the remaining regulated species needs to be recalculated to
consider the conservation needs of these other species.
It further questioned the advisability of including overfished
species in an aggregate TAC.
Response: NMFS has been and remains concerned about the
conservation of each stock for a given species within this species
complex but Amendment 7 addresses the species rebuilding needs of CHY
and deals with the remaining multispecies as a stock complex, in the
aggregate. The national standards require that overfishing definitions
have to be addressed for each species of the multispecies complex, so
that the Council should reconsider the issue annually. It is possible
that additional measures will be required on a species by species
basis, after further analyses later (e.g., analysis of data from one or
two fishing years after implementation of Amendment 7 begins). The MMC
will be charged with the responsibility for addressing this issue and
for making appropriate management recommendations to the Council.
Comment 21: An environmental organization stated that the final
rule should establish in advance the specific improvements in
management programs that would be implemented if target TACs are
exceeded by 10 percent or more.
Response: Any specific improvements in management programs to be
made if target TACs are exceeded would be tailored to the situation
requiring such actions. Because of the combination of factors that
would need to be considered, it would be difficult to establish a fixed
action in advance. Any future action should be subject to comment from
the public at the time it is under consideration.
8. Comments on the DAS Program
Comment 22: An association stated that additional DAS should be
offered as an inducement to vessels converting to hook fishing.
Response: Increases for DAS for individual gear types were
considered in the public hearing document, but rejected by the Council.
The Council and NMFS recognized the possible benefits of hook fishing
by allowing for a permit in the new, hook-only limited-access category.
The commenter's option was not specifically addressed by the Council
but could be considered by the Council as a framework adjustment
measure.
Comment 23: In a joint correspondence two associations stated that
Amendment 7 incentives that offer additional DAS for use of larger mesh
are not equal across gear type. They added that fishing effort
restriction must not favor one gear type over another; otherwise
anticipated conservation benefits could be negated by gear conversion.
Response: The Council recently clarified that the proposed measure
to increase fishing time (DAS) for the Large Mesh Individual DAS option
would apply to all vessels using large mesh, whether they are trawl
vessels or gillnet vessels. This resubmitted measure of Amendment 7,
was described in a notice of proposed rulemaking published in the
Federal Register on April 18, 1996 (61 FR 16892), and is designed to
promote conservation by providing an equitably applied incentive to use
nets constructed of mesh that are larger than the minimum size. NMFS
approved the resubmitted measure on behalf of the Secretary on May 17,
1996.
Comment 24: A commenter stated that Amendment 7 does away with the
``layover provision,'' which would have done some good for the
resource. He added that it was eliminated to placate the large boat
sector. He stated that, without this provision, large boats could
engage in back-to-back trips to the detriment of the resource.
Response: Both the layover day provision and the fleet blocks of
time out of the fishery have been eliminated under the preferred
alternative. Given the 50 percent reduction in DAS allocation, the
possibility of back-to-back trips undermining mortality reduction goals
does not appear to be significant. The layover day provision would not
be effective and would be difficult to enforce under the reduced DAS
allocations implemented by this rule and were removed. In addition,
removal of this provision is intended to encourage some vessels to move
out of groundfishing for significant portions of the year.
Comment 25: A commenter stated that vessels in the Fleet DAS permit
category are at a disadvantage when compared with vessels in the
individual DAS category, because it gives them less access to the
resource and most of them are smaller, more weather dependent boats.
[[Page 27718]]
Response: These categories were established by Amendment 5 after a
lengthy public hearing process and are not changed by this rule. The
principle behind the individual DAS program is to provide those vessels
that primarily direct their operations on multispecies a baseline
allocation of DAS that reflects actual fishing. All other vessels were
allocated a general average of the fleet (Fleet DAS). The Fleet DAS
program was established, in part, as a default type allocation for
vessels that could not prove their actual DAS, vessels that did not
wish to purchase vessel monitoring devices and other vessels that may
not have had sufficient DAS in the groundfish fishery. Vessels that
could demonstrate that they fished more than the fleet average could
apply for an Individual DAS permit. Individual DAS vessels received a
higher allocation of DAS because, historically, they fished for DAS
more than the average of the fleet. In any event, smaller vessels that
traditionally engage in day trips will essentially be allowed twice the
number of allocated DAS because their trips will be allocated on an
hourly basis. That is, a day trip that lasts only 12 hours will only
use up one-half of a DAS.
Comment 26: A commenter stated that the Council acknowledged that
the method used to calculate the DAS for the gillnet sector of the
fleet was wrong. He stated that the Council assumed it would be
corrected by a framework adjustment. He stated that the framework
adjustment process was not intended to be used to correct deficiencies
recognized prior to implementation. He suggested that Amendment 7
should be disapproved on this basis alone.
Response: One of the disapproved measures of the amendment was the
measure that counts gillnet DAS as time when gear is in the water, as
referenced by the commenter. NMFS' Office of Law Enforcement also cited
difficulties in monitoring gear in the water. Moreover, the Council
submitted a comment on the proposed rule stating that it is seeking
alternatives to the gillnet DAS structure through framework action.
Until such time, the DAS counting method will be the same as that for
other DAS categories, i.e., the time spent away from port.
Comment 27: A commenter stated that management's use of DAS as
effort reduction raises questions of equity and fairness. In support of
his statement, he asked the following questions: (1) Does a vessel's
past history of DAS show whether it was away from the dock for 10 or 24
hours? (2) Can a day boat that fished 300 10- or 12-hour days in the
years that are being credited with DAS apply those days to the current
DAS regulations? (3) Can this vessel now take his allotted DAS and
apply them to fishing offshore with 24-hour days? (4) Can a day boat
that historically fished 120 12-hour days now be entitled to 278 days
in year 1 and 176 days in year 2, if he makes all 12-hour trips? (5)
Are these 12-hour day boats benefiting with twice the days as boats
that fish full days? (6) Should a gillnet fleet from Cape Cod be
penalized because the practice of ``soaking'' nets is not acceptable to
the majority of the fishing fleet?
Response: To question (1) Yes, for vessel trips where captains were
interviewed by a port agent, the hours away from the dock are recorded,
however, other records are usually needed to augment NMFS' data because
submission of vessel trip reports was not mandatory and not every trip
could be interviewed; (2) yes, if a vessel can show 300 DAS, it can be
allocated, as a baseline, that many DAS; (3) yes, used DAS are counted
in hourly increments; (4) the vessel would be subject to a 120 DAS
baseline with a 10-percent reduction for 1994 and 1995, an additional
15 percent reduction for 1996 and a final reduction of another 15
percent for 1997; (5) DAS used is computed in hours, therefore, any
vessel using less than 24 hours in a DAS is on record for that portion
of the day used in hours away from the dock; (6) DAS for gillnetters is
based on time away from the dock, which should reflect their actual
fishing time.
Notwithstanding the possibility that vessels that fish only partial
days may be able to fish more ``days'' than their DAS allocation
appears to allow, NMFS has determined that the overall effort reduction
measures are adequate in achieving mortality reduction goals. If it
appears that such measures are not effective they can be adjusted
through framework measures.
9. Comments on the Socio-economic Analysis
Comment 28: In a joint correspondence two associations stated that
the socio-economic statement for Amendment 7 states that class 3 and 4
vessels will not be financially viable in year 2. They further stated
that other fleet sectors will be viable, because the regulations have
been skewed to make it so. They added that the Magnuson Act,
specifically, National Standard 4, clearly states that all user groups
are to be treated equally. They further added that the socio-economic
statement was drawn up several weeks prior to the adoption of major
segments of Amendment 7 and that its accuracy was questioned on
numerous occasions. They stated that the Regional Director had also
indicated publicly his concern about it being a solid appraisal of the
future.
Response: The requirements of the Magnuson Act require that
fisheries regulations do not discriminate against residents of
different states and that any allocation of fishing privileges to
fishers be fair and equitable to all such fishers, that the allocation
be calculated to promote conservation and that no particular entity
acquire an excessive share of such privileges. The Council and NMFS
considered these factors in developing Amendment 7 and concluded that
the measures adopted were the best suited to provide fair and equitable
fishing opportunities to all sectors of the fishery. As to the accuracy
of the socio-economic impact statement (SIA), there were some changes
to specific details of various Amendment 7 regulations after the broad-
scale analyses such as the cost-benefit analysis, the sector analysis,
and the break-even analysis in the SIA were completed. However, the
sector analysis and the break-even analysis in the SIA are not affected
by these changes because the analyses are based on broad effort
reduction goals, (i.e., 50-percent and 80-percent reductions in fishing
effort). The cost-benefit analysis is also based on total levels of
effort reduction (independent of how the reductions are achieved) and
on projected landings. These broad-based analyses did not change in the
final weeks, nor did the general characterizations of the fleet change,
such as are found in the ``Human Environment'' Chapter.
If the comment alludes to specific discussions of particular
measures, such as some of the comments in the SIA, all changes up to
and including those made at the January 25-26, 1996 Council meeting,
which included the vote to send Amendment 7 to the Secretary, were
analyzed. Analyses to minor changes to measures were encompassed in the
broad scale analyses.
Any and all limitations to the data and analyses are discussed in
the FSEIS. However, NMFS stands behind the stated quality of the data
used and academic rigor of the analyses performed. It is true that the
analyses may be insufficient to pinpoint precise impacts, especially
for a given individual vessel. The test of the EIS specifically states
this. The analyses do, however, give an accurate general picture of the
range of likely impacts.
Comment 29: A commenter stated that the only way to rebuild the
stocks is to do away with big fleet boats 60 ft and
[[Page 27719]]
greater in length, which caused the stock damage in the first place.
Sen. Judd Gregg (NH) added his concern that the amendment
inequitably treats the interests of the small-vessel fleet relative to
the large-vessel fleet or corporate trawler fleet operating in the GOM.
He stated that without appropriate modification, Amendment 7 threatens
the economic viability of the New England small-vessel fleet and argued
that it has a relatively small interaction with the groundfish
population. He further stated that the FMP failed to appropriately
focus management measures on the industry segment responsible for
pressuring the resource.
Response: The amendment is intended to be constructive in the long
term, that is, to rebuild the resource by equitably applying reductions
in fishing effort and to allow vessel owners to individually maximize
their abilities within a fair set of constraints. Individually, large
vessels do tend to have greater fishing power and consequently can
exert more fishing pressure on the stocks than do smaller vessels.
Smaller vessels in the 31 to 45 ft (9.5 m to 13.7 m) class
(approximately 46 percent of all limited access permits) can
cumulatively exert a significant amount of fishing effort as well as
individual vessels 60 ft and greater in length. Because of the large
reductions in effort needed to rebuild severely depleted groundfish
stocks, all vessels that are greater than 30 ft (9.1 m) in length, and
all other vessels formerly exempted from the DAS effort reduction
program (Hook-Gear and Gillnet vessels), are brought under the DAS
program. Moreover, given the variability and types of vessels and gear
used in this fishery, it would not be possible to design management
measures with precisely equal impact on all participants. In approving
Amendment 7, NMFS has concluded that the overall conservation benefit
of the measures outweigh the hardship on individual vessels.
Comment 30: In a joint correspondence two associations stated that
the socio-economic analysis of Amendment 7 regulations does not include
any additional monitoring and enforcement costs, yet the document
suggests that these are likely to exceed the projected benefits. The
analysis must factor in the cost of adding all the previously exempted
vessels to the DAS call-in system, the cost of the vessel tracking
system (VTS) to boats and to the Government for the monitoring hardware
and software, and the United States Coast Guard's (USCG) costs for
monitoring and enforcing DAS, closed areas, gear restrictions and trip
limits. They added that the Federal Government has committed $25
million to the Fishing Capacity Reduction Program. This is either a
pure cost, or the cost-benefit must be analyzed. The loss of revenue
from monkfish landings, constrained by management measures to reduce
landings of regulated species, is not included. They further stated
that market loss due to foreign substitutes, and the recent policy
changes in the bid process for military fish supply, are not included
and market rebuilding costs are not estimated.
The associations stated their understanding that these costs, and
others yet to be anticipated, are difficult to predict and quantify but
added that effort must be made to do so, as these costs have the
potential of negating any estimated benefits.
Response: The FSEIS submitted by the Council as part of Amendment 7
contains a discussion of other costs (Appendix X, E.7.2.3.8). The FEIS
document states that many other costs of the nature referred to by the
commenter were not considered because they are only marginally
different from the status quo in Amendment 5 or because the information
is unavailable, as the commenter concedes. For instance, the marginal
cost of adding vessels to the DAS call-in system is expected to be
insignificant because the system is in place and can easily be upgraded
to receive an increased volume of phone calls, if necessary.
Additional costs associated with installation of VTS systems on
individuals vessels were not considered since Amendment 7 does not
change which vessel categories would be required to install a VTS.
Thus, VTS costs to vessels are not affected by Amendment 7 relative to
the staus quo (SQ).
The USCG's estimate of potential costs of Amendment 7 assumes that
much of the enforcement effort would be conducted at-sea. Because of
the comparatively high-cost of at-sea enforcement, NMFS believes that
enforcement efforts will necessarily be land-based. During
implementation of Amendment 7, NMFS encourages increases in sea-based
support to improve the overall effectiveness of programs implemented
under Amendment 5, e.g., DAS compliance, gear restrictions, etc.
However, although such costs may occur during Amendment 7, they
actually represent programmatic improvements that could also be
expected to be made in the out years of the status quo amendment.
Appropriate analyses of the $25 million Fishing Capacity Reduction
Program will be conducted once it has been approved.
Losses from landings of associated species as a result of
conservation actions directed at the regulated groundfish species are
acknowledged in the plan. The benefits derived from foregoing monkfish
landings in order to conserve groundfish stocks are deemed positive.
There is no way to distinguish whether trips in which monkfish is
landed along with regulated groundfish constitute a monkfish trip or a
groundfish trip with monkfish bycatch. Fisheries where it is shown that
bycatch (in weight) of regulated species is less than 5 percent are
permitted to operate under Amendment 7. This is not the case for any
monkfish fishery. A Monkfish plan or amendment is under development,
and it is generally acknowledged that monkfish stocks are
overexploited.
Losses in market as a result of reduced landings under Amendment 7
are recognized. NMFS undertook a study of the impacts of landings
reductions under Amendment 5 on intermediate markets (Georgianna,
Dirlam and Townsend), results of which were commented on
FR Doc. 96-13707 Northeast Multispecies Fishery; Amendment 7
in the FSEIS.
The costs of the steeper reduction in landings as a result of the more
rapid effort reduction will be higher still. The Council took the
qualitative step to modify the reduction schedule from 1 to 2 years
with exactly these impacts in mind. This will provide time for
diversification into other marine products that would result from
shifted effort. Similarly, the Council chose among the alternatives it
considered, the effort reduction process (DAS reduction) least
disruptive to shore-side activities. Again, the reduction schedules
discussed are relevant to groundfish only.
Changes in procurement contracting is nationwide and encourages
competition within the United States among fish producers. The
intention is to achieve greater value for dollar of procurement. Our
analyses suggests that prices to groundfish landings will not be
significantly impacted by the removal of a price floor in the early
years of the plan. In later years, as occasions of congested landings
occur, the removal of this support might lower that day's prices
somewhat from what they might have been. However, this procedural
change would have been in effect under either Amendment 7 or its
default, Amendment 5 as modified.
Comment 31: In a joint correspondence, two associations stated that
the DAS reduction objectives are based on the hypothesis that a 50-
percent reduction in DAS will achieve
[[Page 27720]]
a 50-percent reduction in fishing mortality. They argued that a 50-
percent reduction in DAS is more likely to achieve a much higher
reduction in mortality as large number of vessels exit the fishery
because of insufficient DAS to remain economically viable.
Response: That economic viability will be a problem for the average
trawler as the DAS are reduced was acknowledged in the plan and
particularly in the break-even analysis, which analysis dealt with
groundfish days only. Lack of data on individual vessel costs and
effort precluded prediction of the number that would find conditions
intolerable. To compensate, a yearly adjustment mechanism was
established to attempt to reconcile the DAS reductions with the desired
fishing mortality trajectory. Where vessels exit the fishery and do not
exercise their DAS allocation, the effect may result in an easing of
the reduction schedule for the remaining vessels. This would not occur
without a lag of about 1 year. Much of this uneven distribution of
impacts might be alleviated by programs which permit transfers of DAS,
e.g., through consolidation. These were not included in Amendment 7 but
may be considered in the future.
Comment 32: A commenter, on behalf of nine offshore lobster
vessels, stated that Amendment 7 should not be implemented until the
impacts of redirection of trawler effort on the depletion of the
lobster resource and on gear conflicts are adequately addressed. He
stated that section E.7.1.1.2, Impact on other fisheries, on p. 204 of
the FSEIS is totally inadequate and ignores substantial Council comment
and deliberation on the issue of impact on other fisheries, and also
ignores the experienced re-directed effort that is evident from
Amendment 5 and from similar restrictions on fishing days in the sea
scallop FMP.
The commentor also stated that it is completely disingenuous for
the EIS to say that ``there is no practical way to predict where the
effort from groundfishing will go and what the impact of the proposed
action on other fisheries will be.'' He argued that NMFS has a great
deal of data on the trends in fishing effort, the productivity of
various fisheries, and the impacts evident from the trends in shifting
fishing effort. He cites as sources NMFS information on the value of
fishing gear lost to conflicts with trawlers over the past few years,
the analysis of the shift in effort to the monkfish fishery, the
Fishing Industry Grant program and USCG data.
An attorney representing a group of offshore lobstermen mirrored
the above concerns and added that the Council stated, in support of the
emergency action for gear conflict in southern New England, that the
gear conflicts were related to additional regulations on the groundfish
industry which forced vessels to fish in areas for nontraditional
species. Another commentor finds it inconsistent that the Council can
make this statement in support of an emergency action request and then,
in support of Amendment 7, state that the impact cannot be quantified.
Response: As stated in the analysis of impacts on other fisheries,
the degree to which trawlers may redirect fishing effort onto the
lobster resource cannot be estimated at this time. NMFS believes that
such redirection would be mitigated by the exemption program in the GB/
GOM area, which requires all fisheries outside of the DAS program to
meet the 5-percent bycatch limitation for regulated species.
Comment 33: A commenter stated that a NOAA study of critical socio-
cultural issues is presently underway for the New England fishing
industry. The commenter added that the final report from this study of
the Northeast fishery is due by June 15, 1996, and that such analysis
of the fishery is required by the Magnuson Act and no plan amendment
should be implemented prior to this report.
Response: The report mentioned by the commenter contains baseline
information about the fishing industry that could be used for future
framework actions or FMP amendments. It was not ready in time for the
Council to consider for Amendment 7. Amendment 7 included analyses
based on the best information available to date.
Comment 34: An association stated that under E.O. 12866 the Agency
must submit to the Office of Information and Regulatory Affairs (OIRA),
with respect to any significant action, the text of proposed regulatory
action, an assessment of the costs and benefits of the action, an
assessment of alternatives, and an analysis as to the reasons for
selecting the preferred alternative (PA). It added that the Agency must
provide the public the information provided to OIRA, and the changes
between the draft submitted to OIRA and the subsequent action. It
stated that it is not clear what documents were submitted to OIRA and
what analysis was reviewed.
Response: NMFS complied with the requirements of E.O. 12866. All
public hearing documents, as well as the scientific, economic, and
social impact analyses, and comments to public comments on the DSEIS,
were provided to OIRA along with a copy of the proposed rule and its
preamble. No changes were made to the proposed rule at the suggestion
or recommendation of OIRA.
Comment 35: An association stated that NMFS failed to consider a
wide range of costs associated with the PA.
Response: The economic analysis considered all relevant currently
available data. The availability of information on the full range of
economic activities associated with commercial fishing is quite
limited. Economic data on many shoreside activities such as offloading,
processing, and sales of inputs to commercial fishing vessels is simply
not available. Given this lack of data many of the referenced economic
factors could not be incorporated into the economic analysis. However,
had these factors been included, it is not a foregone conclusion that
they would be economic costs. The benefit-cost analysis must consider
benefits to the Nation as a whole. This has two ramifications. First,
losses in one region may be offset by gains in others, leaving National
income unchanged. This might be the case if vessels and/or crew were to
leave the Northeast and move to other regions. Second, in over-
capitalized fisheries, reductions in resources that are devoted to
fishing may be viewed as a net gain from a National perspective. Given
the lack of adequate economic data, it was not possible to determine
the extent to which economic dislocations such as crew share losses,
impacts on suppliers and processors, or the impacts of bankruptcies
might be considered transfer payments, national economic gains, or net
losses in National income.
Comment 36: An association stated that all the biological and
economic estimates for analyses contained in Amendment 7 occurred
outside the public's view. It said that it is impossible for experts to
replicate any of the sets of projections set forth in the supporting
analysis.
Response: All of the recruitment simulator results that included
landings streams were described at several Plan Development Team
meetings at the Council offices and subsequently at Council Groundfish
Oversight Committee meetings. Both types of meetings are attended by
the public. In addition, the public hearing document and an extensive
draft EIS document were made available to the public months ahead of
the Council vote to adopt Amendment 7. An explicit description of the
economic information used in the final EIS was contained in the latter.
[[Page 27721]]
Comment 37: An organization stated that the IRFA of the impacts of
Amendment 7 should contain a description of any significant
alternatives to the proposed rule that accomplish the stated objective
and that minimizes any significant economic impacts of the proposed
rule on small business. The organization further stated that the final
regulatory flexibility analysis (FRFA) should provide a summary of
issues raised by the public in response to the initial analysis, along
with a description of each significant alternative to the rule
consistent with the objective of minimizing economic impact, and a
statement of why any alternative was rejected.
An association stated that under the Regulatory Flexibility Act
(RFA), an agency must assess the impact of new regulations on small
business. It said that the NMFS has failed to comply with its
obligations. It argued that the Small Business Administration (SBA) had
been largely omitted from the process. The intent of the statute is to
limit regulatory actions having a significant impact on small business.
It argued that this particular preferred alternative (PA) is
specifically designed in such a way that trawl vessels will not be
allocated sufficient DAS to break even during year 2. This extremely
harsh anticipated result flies in the face of the statutory intent of
the RFA.
Response: Amendment 7 contains an IRFA that incorporates supporting
analyses and portions of the amendment that provide the public with
information on the effects on small entities of the PA and any other
alternatives considered by the Council, including those that minimize
the impacts on small entities. The classification section of the
proposed rule for Amendment 7 also contains a statement regarding the
probable effects of the PA on small entities and an initial
determination under the RFA.
NMFS transmitted a copy of the Amendment 7 and its initial
determination that the amendment would have a significant economic
impact on a substantial number of small entities to the SBA shortly
after NMFS' receipt of the amendment, following standard procedure for
all new FMPs and FMP amendments under Secretarial review.
The preamble to this final rule contains a summary of the comments
received by NMFS in response to the notices of proposed rulemaking,
including comments on the IRFA, NMFS' responses to those comments, and
any changes made to the rule as a result of those comments. The IFRA as
submitted by the Council, together with the summary of the comments
received and NMFS' responses thereto, in this preamble, constitutes the
FRFA. Alternative actions were not taken in response to comments on the
IRFA. NMFS believes that the responses in this preamble to the public
comments adequately explain why NMFS did not adopt alternatives having
less of a significant economic impact on small entities compared to
those measures in Amendment 7 that NMFS approved.
NMFS disagrees that the final rule violates the intent of the RFA.
The intent of the RFA is not to limit regulations having adverse
economic impacts on small entities, rather the intent is to have the
agency focus special attention on the impacts its proposed actions
would have on small entities, to disclose to the public which
alternatives it considered to lessen adverse impacts, to require the
agency to consider public comments on impacts and alternatives, and to
require the agency to state its reasons for not adopting an alternative
having less of an adverse impact on small entities.
The Council and Center performed ``break-even'' analyses, apart
from the benefit-cost analysis, specifically to assess the financial
viability of small business fishing vessels. Where a quantitative
assessment was not possible, qualitative comments noting sectoral
impacts were offered.
The differential impact of Amendment 7 on trawlers was noted. The
cost-benefit analysis is designed to analyze net national benefits of
the action affecting many gears and component fisheries. A single
sector analysis is inappropriate. NMFS agrees that trawlers will be
more heavily impacted than hook vessels and possibly gillnetters
(though this latter is unclear since final gillnet framework measures
have not been established).
Without better cost-earnings, labor response and alternative
employment options data, NMFS is limited in the precision of vessel and
fleet level economic/financial impact assessments it can make for such
gear-based allocations. Further, additional data on family structure
and community social structure would be required for a stronger, more
comprehensive social impact assessment of such measures.
Comment 38: An association stated that the NMFS is required, under
E.O. 12866, to seek the involvement of those who are intended to
benefit and those who are intended to be burdened by any regulation. It
added that the Agency must also use consensual mechanisms for
developing regulations, including negotiated rulemaking.
Response: The Council process by its nature involves
representatives of groups that benefit and are burdened by the
management process, either directly as members of the Council, or
indirectly as persons with access to the public process at the Council,
oversight committee and plan team meeting level. Negotiated Rulemaking
is not required.
Comment 39: An association stated that the RIR understates the
impact on the trawl vessels and fails to highlight the speculative
nature of the benefits of the preferred alternative (PA) in years 9 and
10.
Response: NMFS disagrees. The RIR adequately covers economic
impacts. Estimates of economic benefits in years 9 and 10 are seldom as
precise in this kind of analysis as are the estimated benefits and
costs in earlier years.
Comment 40: An association stated that the PA (Amendment 7) will
result in the insolvency of an entire sector of the fishing industry in
the Northeast. It commented that the Agency has selected the
alternative that causes that result even though the benefits of that
plan over the status quo (SQ) (Amendment 5) are questionable and even
though the SQ would achieve the same results with respect to stock
replenishment over a slightly longer period of time while preserving
all segments of the fleet.
Response: The statement does not accurately portray the key
difference in objectives for Amendment 5 and Amendment 7. The stock
rebuilding objective for Amendment 5 is to reduce fishing mortality on
CHY to halt the decline in spawning stock biomass. Rebuilding of
spawning potential under Amendment 5 is limited to levels that would
reduce the risk of recruitment failure, but would still leave the
fishery in an overfished state. By contrast, the objective of Amendment
7 is to rebuild SSB to levels that would exceed minimum threshold
levels for the three key species. The differences between the stock
replenishment scenarios of Amendments 5 and 7 are clearly illustrated
on pages 195-199 of Amendment 7. In every instance, Amendment 7 results
in substantially greater levels of SSB as compared to Amendment 5.
Thus, the contention that Amendments 5 and 7 result in the same level
of stock replenishment cannot be supported.
Comment 41: An association attached a study entitled ``Evaluation
of the Economic Impacts of the Proposed Action (Section E.7.2).'' The
study, by Dr. Andrew Plantinga and Dr. James Wilson from the University
of Maine, acknowledged that NMFS' methodological approach to its socio-
[[Page 27722]]
economic analysis is well-accepted within the field of economics and is
applied in an appropriate manner. It stated that some of the specific
assumptions employed in NMFS' analysis, however, are unconventional and
highly questionable. The purpose of the study is to reconsider the
economic impacts of the proposed action under a more plausible set of
assumptions.
Response: (1) Issue--Treatment of Imports. Holding imports constant
is standard practice in economic analysis of fisheries management, and
reflects uncertainty over how trading partners will manage their
resources within the ten-year time horizon. Holding price constant
ignores dramatic increases in groundfish prices over the next two
decades. Finally, the constant price analysis offered by the commentors
still demonstrates a superior result for Amendment 7 compared to
Amendment 5, in fact, even more so than for an assumption of constant
imports.
(2) Issue--Treatment of crew costs. Since labor employed in a
fishery is a resource that would otherwise be employed in another
activity, it has a resource cost. Given the lack of data on the
opportunity cost of this labor, the entire value of crew share is used
in some analyses as an economic benefit. However, this approach is
inappropriate in overcapitalized fisheries, which is the case for this
fishery.
(3) Issue--Time horizon. A 10-year horizon is standard practice in
bio-economic analyses of northeast fisheries, reflecting the time
period necessary for stock recovery. Uncertainty is addressed through
the simulation model, which is a more rigorous approach than
arbitrarily dropping two years from the analysis.
A more detailed discussion in terms of a response to this comment
is available upon request from the Regional Director.
10. Comments Related to National Standards
Comment 42: An association commented that Amendment 7 is
inconsistent with National Standard 1 which requires the NMFS to
prevent overfishing while achieving an optimum yield from each fishery.
It added that the varying mesh requirements from fishery to fishery fly
in the face of National Standard 1. Moreover, NMFS' failure to consider
the unique factors of different segments of the fleet and different
fisheries conflicts with the goals of National Standard 1.
Response: NMFS has determined that the provisions of Amendment 7
not disapproved are consistent with National Standard 1. Allowing
different meshes for several small fisheries in the overall
groundfishery reflects the effort to incorporate unique factors of each
of these fisheries. Mesh regulations reflect area, gear and species
concerns. Small mesh fisheries are allowed to operate once bycatch
effects have been considered. A single mesh applied to all fisheries
would constrain more opportunities. Benefits to other fisheries are
foregone in the closed areas included in the plan.
Comment 43: An association stated that National Standard 4
prohibits discrimination among the residents of states. It added that
the regulated species constitute a much lower percentage of overall
groundfish landings in Maine than in any other of the states impacted
by the PA. Moreover, the GOM cod stocks have been determined to be
healthier than GB stocks. NMFS' failure to account for differences in
local factors results in an exaggerated detriment to the commercial
fishermen in a region where the problem is less pronounced. The
association added that this failure also violates National Standard 6,
which requires NMFS to consider variations in fisheries, resources and
catches.
In a joint correspondence, two other associations stated that
regulations designed to rebuild stocks of CHY will exact a higher
economic burden for Maine than for other New England states. They
stated that Maine's industry supports 22,000 fishing and fishing-
dependent jobs. They added that Maine is a rural state with few
alternative employment opportunities. The associations said that the
percentage of CHY in the overall groundfish landings of Maine vessels
is much less than that of other New England states. However, Amendment
7 fishing restrictions will greatly constrain landings of other
regulated species, which comprise the largest percentage of Maine's
overall groundfish landings. They stated that GOM stocks were
determined to be healthier than GB stocks, yet all fishing vessels,
regardless of fishing region, must take the same direct effort
reductions as measured by DAS.
Response: NMFS recognizes that ports in some states may be affected
differently than ports in other states. However, National Standard 4
states that management measures shall not discriminate between
residents of different states. None of the measures discriminates
between residents since all are treated similarly, and thus the
amendment is consistent with National Standard 4. The amendment is also
consistent with National Standard 6, because the Council and NMFS have
considered variations in fisheries resources and catches in attempting
to recognize all sectors of the industry through numerous exemptions
and special provisions.
The white hake fishery is of increasing importance to many vessels
in the GOM. A white hake provision in the amendment allows the Regional
Director, upon consideration of the exempted bycatch criteria, to allow
a directed fishery on white hake outside of the DAS program.
Comment 44: An association stated that National Standard 5 requires
NMFS to promote efficiency and National Standard 7 requires NMFS to
minimize costs and avoid unnecessary duplication. It asserted that NMFS
has failed to consider less drastic steps, that could be taken to
achieve the same result. It argued that regulations should include
procedures to relax restrictions quickly. It said that the amendment's
analysis also fails to consider heightened enforcement costs.
Response: Amendment 7 is consistent with both of these national
standards. The Council and NMFS considered alternatives and included
special provisions designed to minimize to some degree the impact of
management measures. NMFS notes it is consistent with both standards to
take actions only ``where practicable.'' Both harvesting and
enforcement costs were less for the DAS reduction program alternative
than for several other alternatives under discussion. For the most part
the systems necessary were adopted under Amendment 5. Other
alternatives included strict quotas with the likely result of fishing
derbies, an extensive closed area grid requiring enforcement features
far beyond the capability of the region's USCG, and complete closure of
all fisheries taking groundfish.
The rebuilding trajectory was modified from a single year reduction
in fishing effort, to 50 percent of recent levels, to a two-year
reduction schedule. In addition, an annual review process will examine
the deviation of the actual from desired rebuilding trajectories.
Adjustments (increases or decrease in fishing effort) in DAS or other
management measures will occur as they become necessary, upon annual
review of the target TACs and actual fisheries data for a given year.
Comment 45: An association stated that Amendment 7 violates
National Standards 2, 4, 5, and 6 because: It uses poor, untimely and
incomplete information; it is not fair and equitable to all fisheries;
it is not reasonably calculated to promote conservation, but rather
downsizes fishing fleets as they once were; it unfairly puts concerns
of one fishery over another; it discards in
[[Page 27723]]
favor of expediency and it does not account or allow for variations of
the fisheries.
Response: NMFS disagrees. As discussed above, the provisions of
Amendment 7 that were not disapproved comply with the national
standards and other applicable laws discussed in response to other
comments. As discussed above, NMFS has determined that the measures are
based on the best available scientific information (National Standard
2), do not discriminate between residents of different states (National
Standard 4), and are fair and equitable and reasonably calculated to
promote conservation. NMFS notes that National Standard 5 requires
fishery management plans to promote efficiency in utilization of
resources ``where practicable,'' as discussed elsewhere in response to
comments; in a fishery as severely overfished as Northeast multispecies
the ``where practicable'' caveat is a constraining factor. NMFS has
approved measures that include several exemption programs and
management measures tailored to account for contingencies (geographic,
seasonal) as specified in National Standard 6.
11. Comments on the Procedural Aspects of Amendment 7
Comment 46: In a joint correspondence, two associations stated that
it is the responsibility of the regional fishery management councils to
see that the intent of the Magnuson Act is carried out so all parties
concerned are treated fairly and equally, that public input be allowed
and comments be seriously considered in making major decisions. The
associations added that such has not been the case in the development
of Amendment 7 by the Council.
Response: The industry has been actively involved in the plan
process, and their viewpoints were solicited and taken quite seriously.
In addition to its regularly scheduled meetings, the Council held a
large number of committee meetings during the development of the
alternatives proposed in the public hearings. Notice of these meetings
was sent to everyone who indicated an interest in receiving such
notice. Furthermore, these meetings, as well as public hearings, were
open to the public and provided an opportunity for representatives from
all the different sectors of the fishery to be heard. As the Council
developed Amendment 7, the severity of measures under consideration was
widely publicized in trade and general publications. The Regional
Director personally met repeatedly with fishing industry groups,
including those associations whose comment this responds to, both
during Council meetings and in their home ports. Furthermore, most of
the proposals made in the associations' position paper of September 19,
1995, were incorporated in some form in Amendment 7. These include the
removal of layover day provisions, the elimination of exemptions for
vessels under 45 ft (13.7 m), and the closure of areas to maximize
recruitment, as well as the continued use of DAS as a primary
management tool.
Comment 47: In a joint correspondence, two associations stated that
the fisheries management process failed its Magnuson Act obligation to
involve the Groundfish Industry Advisory Committee in the development
of Amendment 7.
Response: Members of the Groundfish Industry Advisory Committee
were notified of each scheduled Groundfish Committee meeting and were
well represented and actively participated at most of them.
Furthermore, from representative membership on the Council, through the
scoping process and both formal and informal opportunities to be heard,
industry representatives were involved in the development of Amendment
7 from its inception through implementation.
Comment 48: A commenter stated that none of the alternatives to
Amendment 7 presented by New Hampshire fishers at public hearings (such
as mobile gear night closures and gillnet restrictions) was considered
by the Council.
Response: In fact, such issues were considered by the Council. The
Council is continuing its consideration of additional gillnet
restrictions for implementation by the Amendment 7 framework adjustment
process. The Council continues to receive testimony regarding night
closures for mobile gear, but has not developed a proposal to implement
this measure.
Comment 49: An environmental association urged NMFS to waive the
Administrative Procedure Act's (APA's) 30-day delay in effective date
and implement Amendment 7's conservation measures immediately upon
publication of the rule.
Response: The APA allows the 30-day delay in effective date
requirement to be waived if there is good cause to do so. While the
commenter seeks such a waiver in order to provide immediate
conservation benefits, NMFS believes that it would not be reasonable to
require compliance with management measures of this complexity on an
immediate basis. The 30-day delay in effectiveness will provide NMFS an
opportunity to inform the public about the new requirements. It will
also provide the industry with the time required to make the necessary
adjustments to fishing activities and gear.
12. Comments on Enforcement of the Amendment
Comment 50: The Council submitted comments addressing
enforceability issues associated with the proposed regulations. Their
comments are as follows:
They noted that there was an error in Sec. 651.22(g) with respect
to the requirement to take 20 days out of the multispecies fishery
during the spawning season. Their suggested revision is incorporated.
They identified a mesh size measuring procedure to be used for
gillnets and suggested that implementation of this procedure be delayed
until October 1996. These recommendations were adopted.
They requested a revision of the definition for ``Port'' to clarify
when a vessel must call under the call-in requirements. This change is
incorporated.
NMFS notes that it has made some changes in the final rule in
response to concerns raised by the Council (see changes from the
proposed to final rule).
13. Miscellaneous Comments
Comment 51: The Maine DMR stated, as regards NMFS concerns
expressed in the preamble to the proposed rule about the availability
of open-access handgear-only permits to party/charter vessels and the
resulting administrative and monitoring burden about what set of rules
party/charter boats are operating under, that this burden could be
reduced by requiring that such vessels only call in upon embarking on a
commercial groundfish trip. At other times, party/charter vessels would
be presumed to be fishing under recreational rules.
Response: The Council commented that the call-in requirement for
charter/party vessels would not enhance enforcement and should be
disapproved. NMFS agrees and the measure has been disapproved.
Comment 52: An environmental organization stated that the phrase,
``FMP goals and objectives,'' is used in some places in Sec. 651.40(a)
while in other places the phrase, ``FMP objective,'' is used. It
believes that the former phrase should be used throughout the section
both because it reflects the Council's intention and because it is
important to assure that
[[Page 27724]]
future management decisions will be guided by the need to reach
specified spawning stock thresholds as well as by the fishing mortality
rates that the Council hopes will achieve those thresholds.
Response: NMFS agrees and the commenter's suggestion has been
adopted.
Comment 53: The Maine DMR stated that DAS program results in
compensations by fishermen to maintain their revenues in the face of
reduced fishing time for regulated species. In addition to subtle
increases in fishing power, this also results in displacement of effort
onto other species and into other regions.
It added that large mobile gear vessels that had fished long trips
on offshore grounds are shifting their effort to nearshore and inshore
grounds to maximize landings from fewer DAS. This not only concentrates
effort in areas known to be important spawning and juvenile habitat but
is responsible for a sharp escalation in mobile/fixed gear conflicts as
draggers and gillnetters compete for the same grounds.
Response: The habitat question raised is responded to in Section
13, ``Comments on Protection of Habitat.'' The Council is aware of the
gear conflict issue raised and is presently discussing resolution of
the problem. Any such resolution may be effected through the framework
adjustment process.
Comment 54: Two environmental associations opposed the proposed
exemption that could allow a directed fishery for a regulated species
(white hake) outside of DAS restrictions. They stated that NMFS
classifies the white hake stock as fully-exploited and at a medium
biomass level. They recommended that increased fishing effort on white
hake should be discouraged, not promoted.
The Maine DMR added that the white hake exemption should only be
implemented if management is confident that this stock is under-
exploited and sufficient sea-sampling data is available to determine
that this fishery can meet the 5 percent rule throughout the fishing
year.
Response: NMFS recognizes that this species is fully exploited. The
measure would allow the Regional Director to exempt such a fishery in
consultation with the Council, which may be an option if recruitment
and biomass remain stable. Any such exemption cannot be granted if it
jeopardizes FMP goals and objectives, including not allowing
overfishing on white hake. Another commenter stated that any new
participants to the dogfish trawl fishery implemented by Amendment 7
should be monitored to assure conformity with the present gear.
The commenter cautioned that any deviation from the gear used could
negatively alter the fishery and increase the regulated species
bycatch. He suggested that a level of sea sampling be mandated so that
the fishery does not proceed unmonitored to assure that those who
developed this fishery do not see its conservation benefit compromised.
Comment 55: An environmental organization added that it supports
the dogfish trawl fishery on Nantucket Shoals as long as skate bycatch
restrictions are maintained and as long as periodic review indicates
that: (1) Bycatch rates do not escalate, and (2) appropriate
contributions to overall fishing mortality for multispecies targets due
to this fishery are recognized.
Response: NMFS will monitor the dogfish trawl fishery through sea
sampling, as possible. No skate bycatch is allowed. Should the
situation warrant, the Regional Director has discretion to cancel the
exemption for the fishery.
Comment 56: The Maine DMR stated that it favored inclusion of two
state representatives and an industry member on the Multispecies
Monitoring Committee.
An environmental association recommended that membership on the
technically based MMC proposed by Amendment 7 (61 FR 8546, March 5,
1996) include an environmental representative and meet for purposes in
addition to the annual review (61 FR 8559, March 5, 1996). It added
that the MMC should meet when appropriate, including whenever data
suggests that target TACs for any population are or may be likely to be
overrun by more than 10 percent during any fishing year.
Response: The MMC is formed by the Council. NMFS will forward the
suggestions of these commenters to the Council.
Comment 58: A commenter stated that the Council's mandate, as
defined by the Magnuson Act, is to take immediate action to conserve
and manage the fishery resources. He added that while Amendment 7
purports to be a conservation measure, it is rather a measure that
redirects fishing effort. He explained that it addresses the groundfish
problem in a manner that ignores the fishery as a whole. He said that
Amendment 7 will, in meeting its objective, create and prolong existing
problems in the remaining fisheries. Specifically:
1. DAS that place passive (i.e., fixed) gear in the same category
of effort with mobile draggers and scallopers grossly discriminates
against the passive gear fisherman. For example, an average gillnet
fisherman with 120 nets in the water will utilize 6 nautical miles (nm)
of bottom and occupy 0.41 acre. A dragger towing at 5.5 nm per hour
will drag over 132 miles in 24 hours of towing and with a net sweep of
205 ft will drag over 3,864 acres. Therefore, if DAS are used to manage
the multispecies fishery, then DAS should be separate for passive and
mobile gear, and DAS for passive gear should be greater than that
assigned to the mobile gear sector.
2. The proposed bycatch of lobster (in the mobile gear sector)
should be eliminated. The lobster fishery must reduce lobster landings
by 20 percent over 5 years. A 200 count lobster bycatch allowance
leaves the door open for high grading and for non-reported landings.
The value of 200 lobsters will result in a directed fishery by those
vessels fishing outside of any DAS restrictions for non-regulated
species. (The monetary value of the lobster is greater than the
monetary value of their directed catch.) Finally, the lobster can be
returned unharmed to the sea, which eliminates the wasteful discard
argument.
3. Dealers should report their purchases from all fishermen in a
manner that allows a cross check on the mandated vessel reporting
systems.
Response: (1) Fishing mortality is not a function of the amount of
area covered by the catch per unit of effort--a rough equivalent is a
DAS. In theory, if each vessel gives up a DAS, each vessel experiences
a 1/365th reduction in effort. As discussed in response to other
comments, NMFS has disapproved the proposed measure for counting
gillnet DAS in an effort to put that gear sector on the same basis as
other gear sectors. Also, the Council is continuing to explore other
alternatives for the gillnet sector.
(2) The lobster bycatch allowance is not established as a means to
conserve lobsters, but rather to reflect a legitimate bycatch in a
fishery that may target for multispecies. If further lobster
conservation measures are needed, they would more appropriately be
addressed in management measures designed to protect that species.
(3) NMFS has implemented a vessel reporting system that can be
cross-checked to the dealer reporting system.
Comment 59: The Maine DMR commented favorably on Amendment 7's
exemption for fisheries certified by the Regional Director as having
less than a 5 percent bycatch of regulated species. It noted with
concern, however, that the procedures for identifying candidate
[[Page 27725]]
fisheries for exemption and the methodologies for establishing
certification are not yet specified or in place. It urged the Regional
Director to develop and set forth the requirements for application and
certification as a matter of high priority.
Response: Application procedures are in place and this rule
establishes exemption procedures for the newly impacted large mesh
fishery. Applicant must submit a written request to the Regional
Director. The request must at least describe the area in which the
fishery would operate, the period in which it would operate, the gear
it would use, the approximate number of vessels likely to participate,
and the species it would target, retain and land. Any evidence of the
likelihood of such a fishery succeeding should be included with the
request. The request will be reviewed by the Regional Director and a
letter sent to the requestor explaining the process, which follows. The
request will be analyzed to determine whether such a fishery would meet
the 5 percent regulated species bycatch standard which, under Amendment
7, has been revised to reflect the Council's intent that it is an
absolute maximum (other restrictions on fishing gear and/or seasons may
also be considered to reduce bycatch). The completed analysis will be
forwarded, along with the request, to the Council, which will place the
request for a large mesh exemption on the agenda of the next scheduled
Council meeting.
Comment 60: A commenter stated his concern that the majority of the
small vessels fishing off of Cape Cod fish primarily in the same area
that is designated for the small mesh dogfish fishery. He said that
these small vessels fish exclusively for codfish and 80 percent of the
fishing occurs from June through October. He stated that the small mesh
used combined with less than 100 percent observer coverage raises the
potential for large cod bycatches. The commenter recommends that
regulated mesh or larger be required. He added that permitting a small
mesh size in the dogfish fishery simply because the dogfish are
difficult to remove from the net and does not justify the potential
harm to stocks of CHY. He concluded that allowing vessels to use small
mesh to target dogfish in the area can only lead to high discarding of
regulated species as well as juvenile dogfish.
Response: The Nantucket Shoals experimental dogfish fishery was
monitored by the Massachusetts Division of Marine Fisheries for two
seasons. During the first year of the program, 17 trips were observed
and bycatch of regulated multispecies was less than one-half of 1
percent. This program can be terminated if the Regional Director
determines that bycatch of regulated species is excessive.
Comment 61: An association commented that Amendment 7 data confirms
that commercial hook fishing is labor intensive. It stated that based
on Council data, small longline boats catch only 300 lb (136.1 kg)/man/
day as compared to large draggers, which catch 880 lb/man/day.
Amendment 7, Vol. I, Table E.6.4.1.1.4 b & e. The commenter added that
commercial hook fishing should thus be encouraged to reduce employment
losses.
An association commented that restoring habitat already destroyed
by draggers would be another means of overcoming Amendment 7's
employment dislocation with an eye toward rebuilding stocks in the
future. The commenter suggested that displaced draggermen could be
temporarily employed building artificial reefs ashore and towing them
out to GB and the Great South Channel to enhance stock recovery. It
concluded that even buy-back vessels could be sunk offshore to provide
groundfish gardens.
Response: NMFS is not opposed to any organization encouraging hook
fishing. For NMFS' position on habitat protection, see Section 14,
``Comments on Protection of Habitat.''
Comment 62: The Connecticut DEP commented that it shares NMFS'
concern about the condition of the winter flounder resource (as stated
in the preamble to the proposed rule) but does not agree that
eliminating the winter flounder possession limit in the Mid-Atlantic
(MA) Regulated Mesh Area (RMA) will measurably improve the stock. The
commenter cited the 21st SAW report, which states that only about 18
percent of the SNE and MA area winter flounder landings are from
fisheries in the MA RMA. He added that, ``(w)hatever increased
management effort the Atlantic States Marine Fisheries Commission
(ASMFC) and the Council adopt in response to the SAW advice will be
more critical to successful flounder rebuilding than whether or not the
10 percent/200 lb (90.7 kg) exemption exists during the 1996 fishing
season.''
Response: NMFS' concern about the winter flounder resource is not
unfounded. Winter flounder are currently overexploited, at low biomass
levels, and in need of fishing mortality that is reduced to as low a
level as possible. As the winter flounder stock begins to rebuild, the
Council may want to reconsider the MA RMA exemption at a later time.
Comment 63: In response to NMFS' reservations expressed in the
preamble to the proposed rule, the Connecticut DEP commented that
likely changes in winter flounder management during 1996 will make more
of a difference than the availability of state waters winter flounder
exemption programs. It stated that the value of the program is that it
allows a state to choose not to participate or withdraw. It said that
participating states have been in compliance with the ASMFC plan but
expects that, by summer, most states will (by review and revision of
the plan) be out of compliance because the current SAW advice indicates
a more pessimistic condition of the stock than did the previous SAW.
The DEP raised the issue of whether disapproval of this exemption
program outweighs the problems that may arise of a jurisdictional
nature. It suggested that the program is better off preserved and
opportunity should be provided through ASMFC and the Council to develop
a more aggressive winter flounder conservation program, which also
preserves the states' right to manage fisheries within their
jurisdiction in accordance with approved plans.
The Connecticut DEP further commented that both Connecticut and New
York question the rationale of new Sec. 651.20(j)(7), the 500-lb
(226.8-kg) possession limit when fishing in the State Waters Exemption
Program (SWP) and not fishing under the DAS program. It explained that
under Amendment 5, vessels enrolled in the SWP and not fishing under
DAS could retain 500 lb (226.8 kg) of winter flounder, consistent with
the exclusive economic zone (EEZ) fishermen not fishing under their
DAS. Under Amendment 7, however, the possession limit of regulated
species for EEZ fishermen when not under DAS is zero. The commenter
stated that Connecticut and New York believe that fishermen under the
SWP should be using their DAS when in possession of winter flounder,
that when in the SWP and not on DAS, that possession of winter flounder
should be prohibited. The Connecticut DEP argued that there is no
indication that the Council intended to allow 500 lb (226.8 kg) of
winter flounder in the SWP when not fishing under DAS, while
prohibiting EEZ fishermen from any possession of winter flounder when
not fishing under DAS.
Response: NMFS has not disapproved the State Waters Winter Flounder
exemption program. NMFS believes the Council intended to allow the 500-
lb (226.6-kg) limit when it voted to keep
[[Page 27726]]
current exemption programs in place. The 500-lb (226.8-kg) allowance
was established by Amendment 5.
Comment 64: The Connecticut DEP commented that the proposal to move
the boundary of the MA area may create an enforcement problem in Block
Island Sound. It stated that there is no longer a territorial sea
within 3 miles north and west of Montauk, due to a supreme court
decision in the 1980's that had the effect of changing New York's
``baseline'' and consequently, the location of the New York territorial
sea. It suggested that the matter could be resolved by revising the
location of the line as follows:
Section 651.20(d) Mid-Atlantic regulated mesh area.
(1) Area definition. The Mid-Atlantic regulated mesh area is that
area bounded on the east by a line running from the Rhode Island
shoreline at Watch Hill, RI southwesterly through Fishers Island, NY,
to Orient Point, NY, and from Orient Point southeasterly to the
intersection of the 3-nautical mile line east of Montauk Point,
southwesterly along the 3-nautical mile line to the intersection of
72 deg.30' W. Long. and south along that line to the intersection of
the outer boundary of the EEZ.
In support of the above, the commenter stated that the problem with
the northern terminus of the line in the proposed rule is that it would
bisect the shoreline along the Rhode Island south shore, an area in
which Connecticut, Rhode Island, and New York vessels commonly trawl.
It said that it is inadvisable to have a mesh separation line fall in
the middle of an area commonly trawled, for enforcement reasons. The
commenter stated that its suggested revision resolves the original
problem of splitting Long Island Sound into two mesh management areas
(the original 72 deg.30' line) and avoids splitting Block Island Sound
into two mesh management areas. The Connecticut DEP added that its
proposal has been confirmed to be acceptable to Rhode Island, New York,
and the USCG.
Response: NMFS has adopted the Connecticut DEP's suggested revision
as requested by the States of Connecticut, Rhode Island and New York,
and by the Council.
Comment 65: An association commented that the elimination of a
proposed 100-lb (45.4-kg) groundfish allowance for lobster trap
fishermen is unnecessary. It added that this would prohibit a lobster
fisherman from bringing home a legal size codfish for dinner. It
further noted that if a lobster fisherman has a multispecies permit and
his vessel is more than 30 ft (9.1 m) long, he may not qualify for a
DAS allowance, and would still be unable to land a (legal size)
codfish.
The association added that the proposed rule says that no
groundfish may be taken without a groundfish permit and while no more
permits will be issued, those vessels with permits that are over 30 ft
(9.1 m) (many of the association's lobster vessels are in the 31- to
42-ft range (9.5 m to 12.8 m)) must prove groundfish landings of at
least 500 lb (226.8 kg) to renew their permits. The association
expressed concern that these vessels would actually lose their permits.
The association stated that some allowance should be permitted if only
for personal use. Further, no restrictions are in place to keep
groundfish fishermen from taking lobster.
The association suggested that some small incidental groundfish
catch be allowed for all lobstermen with a groundfish permit or that an
incidental bag limit permit be established to accommodate these
circumstances.
Response: This issue was raised and considered by the Council. The
Council decided to disallow a regulated species bycatch in the lobster
fishery, because the TACs are set so low and Amendment 7 focuses on
eliminating regulated species bycatch in fisheries capable of taking a
bycatch of regulated species.
Comment 66: An association commented that it presumes that
restrictions on possession of groundfish by lobstermen do not include
possession of ``groundfish racks'' that were purchased for use as bait.
It suggests that some wording be inserted into Amendment 7 to recognize
``groundfish racks'' as legal bait possessed by lobster vessels.
Response: The Northeast Multispecies regulations apply to fish and
fish parts, and as such, ``groundfish racks'' must meet the minimum
size established by the multispecies regulations. Furthermore, a
Northeast Multispecies permit is required to possess ``racks'' of
multispecies finfish.
Comment 67: An association commented that it strongly opposes the
total absence of any restrictions that would control the targeting of
lobsters by groundfish vessels. It further stated that the absence of
any wording regarding the subject allows the unrestricted targeting of
lobsters while fishing both during DAS and outside of DAS. The
commenter said that this omission encourages a redirection of effort
onto the lobster resource.
The association suggested that some significant controls on the
targeting of lobsters by groundfish vessels be included in the plan.
Response: Such a restriction is within the purview of the American
Lobster FMP and is not, as such an Amendment 7 issue.
Comment 68: A commenter stated that under Amendment 7 (and
acknowledged under Amendment 5 as well), a vessel's length, gross
registered tonnage, and net tonnage may be increased only once, not
exceeding 10 percent of its previous size. He asserted that, in light
of encouragement to pursue underutilized species such as herring which
are usually high-volume fisheries, some vessels were rigged for mid-
water trawling. As a result, he stated that his vessel is often loaded
to the point of being unsafe. He stated that he has already experienced
a swamping and suggested that such vessels be allowed to increase hold
capacity, i.e., length and tonnage. He stated that the restriction on
horsepower is an adequate control on the vessel's fishing power and,
therefore, limiting the vessel's other dimensions is not necessary.
Response: This issue relates to the provisions for vessel upgrades
as established by the regulations implementing Amendment 5 and which
are unchanged by this rule. The purpose of the upgrade restrictions is
to prevent limited access multispecies permit holders from increasing
the fishing power of their vessels, exacerbating overcapitalization and
overfishing issues in this fishery. Horsepower alone is not a
sufficient limitation of vessel fishing power, especially where the
current horsepower of the vessel may allow the other dimensions to be
increased. Moreover, a vessel that wishes to fish for herring and other
mid-water trawl fisheries not regulated under the Northeast
Multispecies FMP may elect to give up their limited access permits
thereby avoiding vessel upgrade restrictions.
Comment 69: The Marine Mammal Commission stated that to make
meaningful progress towards meeting the Council's revised harbor
porpoise goal and requirements of the Marine Mammal Protection Act
(MMPA), the network of time-area closures for the coming year should be
expanded. The Marine Mammal Commission suggested that the Council's
Harbor Porpoise Review Team (HPRT) meet in time to implement any
recommendations it might make for the summer-fall fishing season off
the coast of central and northern Maine. It also recommended, to better
cover the potential periods of high bycatch in the Mid-coast area as
reflected by current observer data, that the Council and/or NMFS
consider
[[Page 27727]]
expanding the effective dates for the Mid-coast closure to include the
months of September through December and April through May. It added
that it believed that it would be reasonable to allow fishing with
acoustic deterrents in the extended closure periods recommended above
provided evidence continues to indicate their effectiveness.
Response: The Council's HPRT met in May to discuss additional
expansion of time-area closures. The HPRT recommendations were
scheduled for presentation to the Marine Mammal Committee in late May
so that measures could be considered by the full Council at its June
meeting. This will allow any approved measures to be effective in the
mid-coast area by September. Continued use of acoustical devices in
these closed areas will be considered based on the results of recently
concluded experimental fisheries held this spring and the
recommendations of the Harbor Porpoise Take Reduction Team, expected to
be available later this summer.
Comment 70: The Marine Mammal Commission stated that as the number
of northern right whale calves counted in 1995 is exceeded by the 3
percent mortality reported for the past 12 months, action must be taken
to exclude gillnet gear in times and areas where right whales are known
to occur in greatest numbers. It added that these areas include the
Great South Channel from April through June, and Cape Cod Bay from
February through May. It said that action taken by the Council to
reduce entanglement threats has been limited, i.e., it has prohibited
gillnet fishing in parts of one area (the Great South Channel) that are
important for groundfish spawning during part of the peak period of
right whale occurrence.
The Marine Mammal Commission acknowledged that Amendment 7 proposes
expanding the scope of the Council's framework adjustment procedure to
include possible closures to protect right whales and other endangered
whales, however, no further measures are proposed in Amendment 7 in
this regard and it is unclear whether or when the Council might use
this authority.
Therefore, the Marine Mammal Commission recommended that NMFS
either expand Amendment 7 or take separate action under authority of
the Endangered Species Act (ESA) and MMPA to prohibit the use of
gillnets from April through June in the Great South Channel area, which
is designated as critical right whale habitat).
In addition, the Marine Mammal Commission recommended that NMFS
consult with the Commonwealth of Massachusetts to develop measures for
gillnets and other fishing gear capable of entangling right whales from
February through May in the Cape Cod Bay right whale critical habitat.
Response: The issues raised in this comment can be addressed under
the framework actions, provided for in the final rule. The NEFMC did
not forward a recommendation to expand the Area 1 closure to include
the entire right whale critical habitat in time for implementation this
spring. In order for NMFS to issue a regulation under the ESA, to be
effective by April 1997, NMFS would need to publish a proposed rule
within the next few months. NMFS is considering regulatory options to
accomplish this.
NMFS will soon sign a Cooperative Agreement with the Commonwealth
of Massachusetts to enter into a coordinated state-Federal effort to
protect and recover the endangered and threatened marine fauna of
Massachusetts, including the right whale. Once signed, both parties
will begin discussion of several endangered species issues within the
Commonwealth, including additional protection for the right whale
critical habitat area in Cape Cod Bay.
Comment 71: An association stated that under the MMPA, NMFS
classifies the sink gillnet fishery as a Category I and bottom trawl,
longline, and hook and line fisheries as Category III. However,
Amendment 7 states ``it should be noted that the bottom trawl fishery
has incidental takes of striped dolphins, coastal bottlenose dolphins
and pilot whales.'' The commenter suggested that based on this finding
alone, the bottom trawl; fishery ought to be moved to Category II.
Response: This comment relates to MMPA requirements and is not
relevant to Amendment 7. In any event, most of the few takes observed
in this fishery were determined to have been dead before being taken.
In addition, because the observer coverage was low, the estimated
serious injury and mortality levels extrapolated from those few data
points is statistically weak. Therefore, it was determined that the
``North Atlantic Bottom Trawl'' fishery would remain as a Category III
fishery under the MMPA in the final rule to establish the 1996 List of
Fisheries (60 FR 67063, December 28, 1995).
Comment 72: An association stated that closed areas should be
opened to low-impact hook fishing during non-spawning periods.
Response: One reason for the existence of closed areas is to halt
fishing mortality during the period of closure. Any type of fishing
would defeat the purpose of the closure.
14. Comments on Protection of Habitat
Comment 73: Many comments were submitted raising issues related to
the impact of certain fishing gears on marine habitat and, in some
cases, proposing restrictions on this gear and providing incentives for
other gear types. The major points of all habitat-related comments are
summarized below, with emphasis on comments from the Darling Marine
Center at the University of Maine and the Cape Cod Commercial Hook
Fishermen's Association, because they are representative of issues
raised in the majority of the other comments received.
One said NMFS should be an active partner with the Council in
identifying areas of critical concern and investigate the use of
intensive gear, and if necessary, restrict or prohibit particular gear
use. There was general disagreement that additional studies would be a
sufficient management approach and further disagreement with the
decision not to include trawl gear restrictions at this time.
One group stated that trawling and dredging activities have the
capability of altering structurally complex bottom communities,
principally through the removal of biomass, and that these alterations
will result in completely different bottom communities occupying these
locations.
In discussing the legal standards of the Magnuson Act and the APA,
this group stated that an international consensus is emerging that
management agencies should apply a precautionary approach to fisheries
management. It was emphasized that it would be more prudent to protect
some of these areas as soon as possible by establishing marine reserves
to protect specific habitat features such as habitat complexity.
Increased complexity would result in increasing survivorship of
postlarval and early juvenile size classes, thus increasing recruitment
to harvested populations. Given the particular relevance of the
precautionary approach to the numerous uncertainties involved in
managing fisheries, it would seem to be incumbent upon managers and
research scientists alike to prevent long-term damage to ecosystems
from occurring while their theories are being tested.
An association contends that Amendment 7 fails the following
national standards for the reasons mentioned: National Standard 1, by
ignoring gears' differential habitat and selectivity impacts; National
Standard 2,
[[Page 27728]]
because best science demonstrates landings approximate catch only in
the hook fishery and also demonstrates that heavy dragger gear damages
groundfish habitat, diminishing stocks; National Standard 3, by
ignoring management units based on types of gear and similar fishing
practices; National Standard 4, since allocation is necessary to
discourage dragging on hard bottom and encourage conversion to hook
fishing; National Standard 5, as Amendment 7 does not promote long-run
efficiency since fishing power is not reduced absent dragger gear
restrictions; and National Standard 6, by ignoring fishing practices
and by wrongly incorporating the ``fair and equitable'' standard into
analysis of this national standard.
An association disputed the amendment's statement that, as
currently drafted, ``(t)he Magnuson Act limits the Council's role to
commenting on proposals that would affect fishery resources and their
habitats.'' In fact, the commenter notes that beyond merely commenting,
the Council is empowered to ``make recommendations concerning any
activity . . . that, in the view of the Council, may affect the habitat
of a fishery resource * * *.'' 16 U.S.C. section 1852(I)(1)(A).
Response: There is growing interest and research into trawling and
dredging effects on bottom habitat and benthic communities. Research to
date indicates that mobile gear is having observable effects on the
bottom in some areas and little discernable effect in other areas. The
causes for differing effects have not yet been identified. In addition,
the ecological impacts of mobile gear on commercially important stocks
remain largely unknown. NMFS does not believe that the scientific
information currently available is adequate to show that placing
restrictions on mobile gear would result in benefits for commercially
important stocks. NMFS does not intend to wait for ``full scientific
certainty'' before making a recommendation that might restrict the use
of mobile gear in certain areas, but rather is cautious in instituting
such restrictions with uncertain and inadequate data. To seek
resolution of this issue, the NMFS and the Council support additional
research on this topic so that future management measures can account
more for the effects of fishing gear, especially if additional research
indicates that recruitment could be enhanced by reducing the amount of
disturbance to benthic habitat. Currently the Stellwagen Bank National
Marine Sanctuary and NOAA's National Undersea Research Program are
among those proposing research into the effects of bottom gear on
groundfish habitat.
While NMFS and the Council are not advocating specific management
measures to avoid or reduce the effect of mobile fishing gear on bottom
habitat, it is worth noting that Amendment 7 does include measures such
as closed areas and overall effort reductions that will reduce the
amount of trawling and thus reduce the frequency of disturbance to
bottom habitat used by multispecies stocks. Although these effort
reductions will not include permanent marine reserves that are off-
limits to trawling and dredging gear, they might provide opportunities
to investigate whether reduced pressure on habitat from bottom gear may
over time enhance the structural complexity of the bottom in some areas
and increase survivorship of early life stages of commercially
important species.
Regarding the role of the Council in respect to habitat, the
commenters raise some valid points. Fishery management plans prepared
by the Council or Secretary include habitat sections that identify the
habitat needs of the species. NMFS works with developers and permitting
agencies to avoid, minimize and mitigate the anticipated habitat
impacts from a proposed activity. Fishery management plans are one tool
NMFS and the Council can use to identify habitat essential to
commercial stocks.
The commenters disagree with the Council's approach taken in
Amendment 7 that concentrates on achieving reductions in fishing
mortality through controls on fishing effort. The supporting analyses
for Amendment 7 referenced by the commenters demonstrates that the
Council and NMFS realize that the recovery of severely depleted fish
stocks can be enhanced by incorporating more comprehensive scientific
information into management decisions. In particular, NMFS is committed
to conducting additional research into the habitat requirements and
life histories of multispecies stocks so that future management actions
can focus on those measures that will be most effective in enhancing
recruitment. For Amendment 7, NMFS and the Council used available
information to develop a suite of management measures, including closed
areas and effort reductions, that will reduce fishing pressure on the
stocks as well as their habitat. NMFS acknowledges that more work is
needed in this area to tailor future management actions to the
biological needs of target species, which include habitat requirements.
As discussed throughout this document, NMFS has determined that
Amendment 7 is consistent with the national standards, which conclusion
is supported by the record of decision.
Comment 74: The Maine DMR stated that the science (both data and
theory) supporting management must change and that the importance of
such parameters as fish size and the qualitative differences of habitat
protection at different seasons should be more effectively integrated
into the analysis.
Response: The Council acknowledges, in its discussion on research
to support fishery habitat protection (Volume I of Amendment 7), the
need to conduct research to determine which habitats are most important
to support groundfish stocks throughout their life history stages and
to understand factors essential for sustained fisheries production. As
stated earlier, habitat protection and conservation is an integral
component of fishery management; NMFS strongly supports the advancement
of marine research to improve its understanding of the relationship
between species and habitat during various life stages. Such
information will be incorporated into fishery management plans as it
becomes better understood and defined.
Comment 75: An association commented that the national standards
dictate a differentiation between hook fishing and other commercial
groundfishing, just as has occurred in other regions of the country. It
added that the Council predictably relies on the fair and equitable
argument to defend its failure to distinguish the commercial hook
fishery; however, a Magnuson Act guideline states: ``An allocation need
not preserve the status quo in the fishery to qualify as fair and
equitable, if a restructuring of fishing privileges would maximize
overall benefits.''
An association discusses Norwegian studies that documented how
longlining is a more size-selective fishing method than trawling. The
commenters pointed out that these studies further proved that yield and
employment effects were greater in the longline fishery as compared to
the trawl fishery.
Another association commented that the Council rejected the Cape
Cod Commercial Hook Fishermen's Association (CCCHFA) plan because it
had no measurable objectives, only covered a limited region, and had
direct allocation effects on a particular sector of the industry. The
association said that the reasons for rejection are without support and
invalid as they are contrary
[[Page 27729]]
to the administrative record already submitted to the Council.
Response: Gear selectivity was discussed in the development process
of Amendment 7 but rejected as an option in the final outcome. In
making this decision, the Council and NMFS determined that the
management regime should, to the extent practicable, preserve the
multifaceted nature of the Northeast Multispecies fishery. The Council
could revisit this issue at a later time through the expansive
framework capability under Amendment 7.
Comments on Enforceability Issues
The USCG and NMFS Enforcement requested that a vessel operator be
required to retain on board all DAS confirmation numbers for the
current fishing year. The Council decided that this was an unnecessary
burden on the industry and recommended instead that they be required to
retain numbers for the current and immediately prior trips. The
Council's recommendation is adopted here.
They requested that the current provision requiring a vessel to
have a standard tote on board the vessel be retained. This provision
was inadvertently deleted in the proposed rule and is reinserted here.
They commented that the call-in requirement for charter/party
vessels would not enhance enforcement and should be disapproved. The
measure has been disapproved.
They requested a change to require a vessel operator when hailed by
an authorized officer via VHF-FM radio, to respond to such hail. This
change has been incorporated.
The Council requested a revision to the definition for the
``Multispecies Monitoring Committee'' to clarify their intent with
respect to membership. This change is incorporated in the final rule.
The Council suggested an addition to the qualification criteria for
Hook-gear limited access permits to clarify how recreational landings
should be handled. This change is incorporated. Additional comments of
enforcement concern follow.
Comment 76: The USCG stated that Amendment 7 cannot be successful
without a fully integrated approach between its at-sea efforts and NMFS
Enforcement shoreside activities. It stated that it is prepared to
assign a high priority to enforcement concerns.
A commenter stated that Amendment 7, without enforcement, will not
affect that segment of the fleet that systematically uses small mesh
liners inside the regulated mesh size codend. The commenter added that
during the lag time between assessment and final judgment of those
perpetrators that are caught, the perpetrators still fish, contract
debt and shelter revenue. He stated that at-sea enforcement must be
fast and without warning to be effective and justice should be swift.
He added that a port reporting and enforcement system that effectively
detects misreporting or no reporting of catch is also needed.
Another commenter stated that some kind of incentive to follow the
rules is needed. He implied that some people who will be left in the
fishery will not follow the rules.
An association stated that TACs encourage non-compliance in the
form of under-reporting and high-grading and are costly to enforce.
Response: NMFS Northeast Region enforcement personnel and the USCG
First District Commander have integrated their planning to ensure that
there is an effective USCG--NMFS enforcement strategy in place to
support Amendment 7. NMFS Law Enforcement continues to work toward
effective implementation of the effort control and monitoring measures
in the Multispecies fishery and will explore ways to improve compliance
with existing regulations in partnership with the USCG and natural
resources divisions of each coastal state. NMFS Law Enforcement and
NOAA General Counsel work cooperatively to investigate and bring to a
conclusion, all cases involving violation of the conservation
regulations. NMFS Law Enforcement believes in the concept of voluntary
compliance and is actively pursuing education as a means to attainment
of voluntary compliance. This effort, combined with penalties as
appropriate, provide the incentives to adhere to conservation
regulations.
Comment 77: A commenter stated that the present vessel call-in
system to monitor DAS is obsolete and recommends instituting a basic
VTS without messaging capability or a magnetic card system with PIN
number verification.
Response: Under Amendment 7 approximately 800 additional vessels
operating in the Northeast Multispecies Fishery will be required to
report their departures and arrivals from and to port via telephone
under applicable effort reduction reporting provisions. A magnetic card
system is not logistically feasible as it would require installation of
a magnetic card reader device in every operating port on the Northeast
seaboard. When a basic VTS system is adopted, the final performance
standards for all VMS identify two-way messaging capability as a
fundamental performance requirement for any VMS system approved by
NMFS. A VTS requirement was established in Amendment 5, but is awaiting
testing and vendor certification procedures to be complete before it
becomes fully implemented.
Changes in the Final Rule From the Proposed Rule
As discussed above, some changes from the proposed rule were
necessary to respond to a review of the amendment by NMFS Office of Law
Enforcement, the Council's Law Enforcement Committee and the USCG.
Other changes made are technical or administrative in nature and
clarify or otherwise enhance enforcement and administration of the
fishery management program. These changes are listed below in the order
that they appear in the regulations.
In Sec. 651.2, the definition for ``DAS (Days-at-Sea)'' is revised
to remove the disapproved provision to count DAS for gillnet vessels as
time when gear is in the water.
In Sec. 651.2, the definition for ``Multispecies Monitoring
Committee'' is revised to clarify that the number of representatives
from the
FR Doc. 96-13707 Northeast Multispecies Fishery; Amendment 7
affected coastal states appointed by the ASMFC is limited to
two.
In Sec. 651.2, definitions ``Prior to leaving port'' and ``Upon
returning to port'' are added to clarify when a vessel must begin and
end a multispecies DAS trip under the call-in requirement.
In Sec. 651.2, the definition for ``Standard box'' is no longer
necessary and is removed.
In Sec. 651.2, the definition for ``Sink gillnet'' is revised for
clarification.
In Sec. 651.4, paragraph (b)(1)(ii)(A) is revised to clarify the
qualification criteria for limited access Hook-Gear permits for
recreational vessels that recorded landings by number and not by
weight.
In Sec. 651.4, paragraph (f)(3) is revised to clarify that a vessel
has only one opportunity to change its permit category in 1996 during
the 45-day time period after implementation of this rule and that this
45-day opportunity will be available each fishing year.
In Sec. 651.9, paragraph (a)(3) duplicated (a)(4) in the proposed
rule and is removed, paragraphs (a)(4) through (a)(13) are redesignated
as (a)(3) through (a)(12), respectively.
In Sec. 651.9, paragraph (b)(4), the prohibition on possession
limits is revised to reflect changes in Sec. 651.27 due to the
disapproval of the possession limit for winter flounder.
In Sec. 651.9, paragraph (b)(8), which referenced a disapproved
provision, is removed, and paragraphs (b)(9) through
[[Page 27730]]
(b)(12) are redesignated (b)(8) through (b)(11), respectively.
In Sec. 651.9, paragraphs (c)(4) and (d)(4) are added to enhance
enforcement of the provisions in Sec. 651.33(a) and (c).
In Sec. 651.9, paragraph (e)(8), a reference to Sec. 650.20 is
corrected to read Sec. 651.20.
In Sec. 651.9, paragraphs (e)(12), (e)(13), (e)(14), and (e)(15),
are revised by being made more explicit.
In Sec. 651.9, paragraph (e)(17) is revised by eliminating the
reference to Sec. 651.20(d)(3), a reference to the disapproved winter
flounder exemption in the Mid-Atlantic regulated mesh area.
In Sec. 651.9, paragraph (e)(22) is made more explicit.
In Sec. 651.9, paragraph (e)(32) is made more explicit.
In Sec. 651.9, paragraph (e)(38) is added to reflect the
requirement to have a standard tote on board when fishing under a
possession limit restriction.
Section 651.10 is revised, as requested by the Council, NMFS
Enforcement and the USCG, to include a requirement that a vessel
operator respond if hailed by an authorized officer via VHF-FM radio.
In Sec. 651.20, paragraphs (a)(2)(ii), (c)(2)(ii), and (d)(2)(ii)
are revised to include cross references to the Large Mesh Individual
DAS Category in Sec. 651.22(b)(7) approved under the resubmitted
portion of Amendment 7.
In Sec. 651.20, paragraph (d)(2) is revised to remove the reference
to paragraph (d)(3), the disapproved winter flounder possession limit.
In Sec. 651.20, paragraph (d) the definition of the ``Mid-Atlantic
Regulated Mesh area,'' is slightly revised as a result of comments from
and an agreement between the states bordering the area, the USCG and
NMFS enforcement.
In Sec. 651.20, paragraph (d)(3) is removed to reflect the
disapproval of the winter flounder possession limit in the Mid-Atlantic
regulated mesh area.
In Sec. 651.20, paragraph (g) is revised to clarify that the net
measurement procedure described referred to all nets with the exception
of gillnets. Paragraph (g)(4) is added to include net measurement
procedures for gillnet gear. Implementation of this procedure is
delayed to allow the gillnet fleet time to adjust to this new
procedure.
In Sec. 651.20, paragraph (i) is revised to clarify that scallop
vessels possessing multispecies must have a valid multispecies permit
issued under this part.
In Sec. 651.20 (i) and (j)(7), Sec. 651.27, and Sec. 651.33(a) and
(c), a measure inadvertently deleted in the proposed rule, that
requires vessels when subject to a possession limit to have on board at
least one standard tote, is added.
In Sec. 651.22, paragraphs (b)(1)(i) and (b)(2)(i), (b)(5)(i),
(b)(6)(i), and (b)(7)(i) have been revised to reflect that the DAS
allocations for the 1996 fishing year have been prorated based on the
amount of time remaining in the 1996 fishing year, or 83 percent.
In Sec. 651.22, paragraphs (b)(1)(ii) and (b)(2)(ii) are revised to
reflect that vessels holding both Gillnet and Individual DAS category
permits are to be initially assigned into the Fleet DAS category,
rather than the Individual DAS category.
In Sec. 651.22, paragraph (b)(6) is revised and paragraph (b)(7) is
added to reflect the approval of the measures included in the
resubmitted part of Amendment 7, which allows vessels the ability to
elect either the Large Mesh Fleet DAS program or the Large Mesh
Individual DAS program.
In Sec. 651.22, paragraph (c) is redesignated as paragraphs (c)(1)
and (c)(2) to clarify that a vessel possessing both a 1995 limited
access Gillnet permit and Individual DAS permit is eligible to appeal
its initial allocation of gillnet DAS.
In Sec. 651.22, paragraph (d)(2)(i), the date by which a vessel may
appeal its allocation of DAS is revised to reflect a later than
anticipated implementation date for this amendment.
In Sec. 651.22, paragraph (g), is clarified by replacing the phrase
``fishing year'' with ``calender year'' and by clarifying the
requirement for the 1996 calender year.
In Sec. 651.27, paragraph (b) is removed to reflect that the
possession limit for winter flounder has been disapproved, paragraph
(c) is redesignated as paragraph (b), and the title to Sec. 651.27 was
revised accordingly.
In Sec. 651.28, paragraph (c) is removed to reflect the disapproval
of the charter/party call-in requirement.
In Sec. 651.29, paragraphs (b)(1), (b)(2), (b)(4), and (b)(5), all
references to charter/party vessels are removed to reflect that the
call-in requirement for charter/party vessels has been disapproved.
In Sec. 651.29, paragraph (b)(3) is revised to clarify that DAS
confirmation numbers for the current trip and immediately prior
multispecies fishing trip must be retained on board the vessel.
In Sec. 651.29, paragraph (d) is revised to reflect the disapproval
of the proposal to count gillnet DAS as time when gillnet gear is in
the water.
In Sec. 651.29, paragraph (e) is added to describe the call-in
requirement for the 20 day spawning season restriction.
In Sec. 651.32, paragraph (a), the reference to Sec. 651.32(h) is
corrected to read Sec. 651.21(h), and paragraph (a) is redesignated as
paragraphs (a)(1) and (a)(2) to include gillnet area closures that were
implemented on March 5, 1996 (61 FR 8494) under Framework 14 to the
FMP.
In Sec. 651.33, paragraph (b), the phrase ``and has declared into
the charter/party fishery'' is removed to reflect that the declaration
into the charter/party fishery has been disapproved.
In Sec. 651.40, paragraph (a)(3), the reference to (a)(5) is
corrected to read (a)(6).
Classification
The Regional Director determined that Amendment 7 to the FMP is
necessary for the conservation and management of the Northeast
multispecies fishery and that it is consistent with the Magnuson Act
and other applicable laws.
The Council prepared a FSEIS for Amendment 7; a notice of
availability was published on February 16, 1996 (61 FR 6230). This
action is expected to have a significant economic impact on the human
environment. The Assistant Administrator for Fisheries, NOAA (AA),
determined upon review of the FSEIS and public comments on the Draft
SEIS that the PA of the amendment is environmentally preferable to the
SQ. The FSEIS demonstrates that the PA contains management measures
able to rebuild severely depleted stocks of haddock, cod, and
yellowtail flounder; protect harbor porpoise; provides economic and
social benefits to the fishing industry in the long term; and should
provide better balance in the ecosystem in terms of groundfish
resources.
This final rule has been determined to be ``economically
significant'' for purposes of E.O. 12866, but probably will not have an
annual impact on the economy of $100 million or more, and will not
adversely affect the productivity, environment, public health or safety
or state, local or tribal governments or communities in the long term.
By increasing multispecies catch rates in the long term and reducing
operating costs, this action is expected to make the industry more
productive after recovery of multispecies stock abundance and to
increase the competitiveness of the domestic industry in comparison to
foreign suppliers.
In compliance with the RFA, the Council prepared an IRFA as part of
the RIR that concluded that this action would have significant economic
impacts on a substantial number of small entities. The FRFA consists of
the
[[Page 27731]]
IRFA and comments and responses in this final rule associated with the
public's concerns about possible effects of this rule on small
entities. Responses to comment numbers 12, 13, 14, 18, 22, 23, 25, 26,
27, 28, 29, 35, 37, 39, 40, 43, 46, 48, 51, 58, 65, and 67 are
especially relevant to concerns of the public about possible effects of
one or more measures contained in this rule on small entities, often
focusing on a particular group of small entities. The measures
contained in this rule are restrictive, and impacts on the industry are
expected to be significant. In the early years of the program, some
vessels may be unable to cover their costs in part because of these
restrictions and also due to the poor condition of the stocks. Such
vessels are expected to leave the fishery. Relative to the SQ, however,
this program is expected to produce higher long-term benefits to the
industry and the Nation. The majority of the vessels in the Northeast
multispecies fishery are considered small entities. This action is
expected to reduce the overall revenues of the multispecies industry by
approximately 10 to 25 percent in the first 3 years of the program
compared to the SQ. The impact of the action will not be uniform for
all vessels or all sectors. Instead, the action will have differential
effects on gear groups, with trawlers potentially being relatively more
disadvantaged than other vessels. This is primarily because trawlers
produce the largest share of total multispecies landings and have
higher costs. Alternately, smaller and independent vessels are well
suited to adapting to year to year changes in species as availability
changes. Generally, smaller vessels are more flexible and have lower
costs. This action will allow vessels less than or equal to 30 ft (9.1
m) to be exempt from the DAS program, provided they comply with the
300-lb (136.1-kg) CHY possession limit. The CHY comprise 15 percent of
the revenue of these vessels.
The negative effects of the non-selected alternatives would be
greater than those of the selected measures. Expected impacts of the
action on crew income are negative in the first 5 years of the program
and positive thereafter. Likewise, the level of employment is expected
to decline in the short-term to an undetermined extent but will rebound
over the long term. Projected revenues from fishing will be positive
beginning in the year 2001, which will create demand for other goods
and services in the area and lead to increased production and
employment. The overall impacts will be positive. The action is
expected to increase net benefits to the nation by $18 million over the
10-year rebuilding period. The recreational sector is not expected to
be negatively impacted by this action.
Also, regarding the RFA, steps are being taken by NOAA to reduce
the socio-economic burden on small entities through a buyout program,
being implemented in two phases, aimed at reducing fishing capacity in
the groundfish fishery and offering an economic alternative to vessel
owners in the fishery. NOAA awarded grants to 11 New England fishing
vessels under a $2 million pilot buyout program in February, 1996, in
return for scrapping their vessels and surrendering their fishing
permits. A larger vessel buyout program for as much as $25 million is
being developed for implementation after Amendment 7 is made effective.
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 rule contains six new collection of information requirements
subject to the Paperwork Reduction Act. The collection of this
information has been approved by the OMB, and the OMB control numbers
and public reporting burden are listed as follows:
1. The Nantucket Shoals Dogfish exemption, OMB# 0648-0202, will
require vessel notification (2 minutes/response).
Revisions to the existing requirements are:
2. Proof of VTS installation, OMB# 0648-0202, (2 minutes/response);
3. Call-in or card system, OMB# 0648-0202, (2 minutes/response);
4. Limited access permit, OMB# 0648-0202. Appeal of the DAS
allocation will require written submission (2 hours/response);
5. Limited access permit appeals, OMB# 0648-0202, appeal of denied
permits will require written submission (0.5 hours/response);
6. Three new vessel permit categories (Handgear, Charter/Party and
Scallop Multispecies Possession Limit), OMB # 0648-0202, are created
with no increase in burden above that currently associated with vessel
permits.
A formal section 7 consultation under the ESA was initiated for
Amendment 7 to the FMP. In a biological opinion dated February 16,
1996, the AA determined that fishing activities conducted under
Amendment 7 and its implementing regulations may affect, but are not
likely to jeopardize the continued existence of any endangered or
threatened species under the jurisdiction of NMFS or result in the
destruction or adverse modification of critical habitat.
Adverse impacts on marine mammals resulting from fishing activities
conducted under this rule are discussed in the FSEIS.
List of Subjects in 50 CFR Part 651
Fisheries, Fishing, Reporting and recordkeeping requirements.
Dated: May 28, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 651 is amended
to read as follows:
PART 651--NORTHEAST MULTISPECIES FISHERY
1. The authority citation for part 651 continues to read as
follows:
Authority: 16 U.S.C. et seq.
2. In Sec. 651.2, the definition for ``Charter and party boats'',
``Sink gillnet'', and ``Standard Box'' are removed; the definitions for
``Alewife'', ``American shad'', ``Atlantic croaker'', ``Black sea
bass'', ``Blowfish'', ``Bluefish'', ``Charter or party boat or charter/
party boat'', ``Conger eels'', ``Cunner'', ``Dogfish'', ``Exempted
gear'', ``Fourspot flounder'', ``Hagfish'', ``Handgear'', ``Handline or
handline gear'', ``Hickory shad'', ``John Dory'', ``Longhorn sculpin'',
``Mullet'', ``Multispecies Monitoring Committee'', ``Prior to leaving
port'', ``Rod and reel'', ``Scup'', ``Sea raven'', ``Searobin'', ``Sink
gillnet or bottom-trawling gillnet'', ``Skate'', ``Spot'', ``Summer
flounder'', ``Swordfish'', ``Target Total Allowable Catch (TAC)'',
``Tautog'', ``Tilefish'', ``Upon returning to port'', and ``Weakfish''
are added, in alphabetical order; and the definitions for ``DAS
(Day(s)-at-sea)'', and ``Out of the multispecies fishery or DAS
program'' are revised to read as follows:
Sec. 651.2 Definitions.
* * * * *
Alewife means Alosa pseudoharengus.
* * * * *
American shad means Alosa sapidissima.
Atlantic croaker means Micropogonias undulatus.
* * * * *
Black sea bass means Centropristis striata.
Blowfish (puffer) means any species in the family Tetraodontidae.
[[Page 27732]]
Bluefish means Pomatomus saltatrix.
* * * * *
Charter or party boat or charter/party boat means any vessel
carrying passengers for hire to engage in recreational fishing and that
is not fishing under a DAS.
* * * * *
Conger eels means Conger oceanicus.
* * * * *
Cunner means Tautogolabrus adspersus.
DAS (Day(s)-at-sea) means the 24-hour periods of time during which
a fishing vessel is absent from port in which the vessel intends to
fish for, possess or land, or fishes for, possesses, or lands regulated
species.
* * * * *
Dogfish means spiny dogfish, Squalus acanthias, or smooth dogfish,
Mustelus canis.
* * * * *
Exempted gear means gear that is deemed to be not capable of
catching multispecies finfish and includes: Pelagic hook and line,
pelagic longline, spears, rakes, diving gear, cast nets, tongs,
harpoons, weirs, dipnets, stop nets, pound nets, pelagic gillnets, pots
and traps, purse seines, shrimp trawls (with a properly configured
grate as defined under this part), and mid-water trawls.
* * * * *
Fourspot flounder means Paralichthys oblongus.
* * * * *
Hagfish means Myxine glutinosa.
Handgear means handline or rod and reel gear.
Handline or handline gear means fishing gear that is released by
hand and consists of one main line to which is attached up to two
leaders for a total of not more than three hooks. Handlines are
retrieved only by hand, not by mechanical means.
* * * * *
Hickory shad means Alosa mediocris.
* * * * *
John Dory means Zenopsis conchifera.
* * * * *
Longhorn sculpin means Myoxocephalus octodecimspinosus.
* * * * *
Mullet means any species in the family Mugilidae.
* * * * *
Multispecies Monitoring Committee means a team of scientific and
technical staff appointed by the Council to review, analyze, and
recommend adjustments to the management measures. The team will consist
of staff from the New England and Mid-Atlantic Fishery Management
Councils, the NMFS Northeast Regional Office, the NEFSC, the U.S. Coast
Guard, an industry representative, and up to two representatives from
each affected coastal state appointed by the Atlantic States Marine
Fisheries Commission.
* * * * *
Out of the multispecies fishery or DAS program means the period of
time during which a vessel is absent from port and is not fishing for
regulated species under the multispecies DAS program.
* * * * *
Prior to leaving port, for purposes of the notification systems
described in Sec. 651.29, means prior to departing from the last dock
or mooring in port to engage in fishing, including the transport of
fish to another port.
* * * * *
Rod and reel means a hand-held (including rod holder) fishing rod
with a manually operated reel attached.
* * * * *
Scup means Stenotomus chrysops.
Sea raven means Hemitripterus americanus.
Searobin means any species in the family Triglidae.
Sink gillnet or bottom-tending gillnet means any gillnet, anchored
or otherwise, that is designed to be, or is fished on or near the
bottom in the lower third of the water column.
Skate means any species in the family Rajidae.
Spot means Leiostomus xanthurus.
* * * * *
Summer flounder means Paralichthys dentatus.
Swordfish means Xiphias gladius.
Target Total Allowable Catch (TAC) means the annual domestic
harvest targets for regulated species.
Tautog (blackfish) means Tautoga onitis.
* * * * *
Tilefish means Lopholatilus chamaeleonticeps.
* * * * *
Upon returning to port, for purposes of the call-in notification
system, means the first point when a vessel ties up at a dock or
mooring in a port at the end of a fishing trip.
* * * * *
Weakfish means Cynoscion regalis.
* * * * *
3. In Sec. 651.4, paragraphs (a), (b), (c), (e), (f), (h)(1)(ii),
(h)(1)(iii), and (q) are revised to read as follows:
Sec. 651.4 Vessel permits.
* * * * *
(a) General. Any vessel of the United States, including a charter
or party boat, must have been issued and have on board a valid Federal
multispecies permit issued under this part to fish for, possess or land
multispecies finfish in or from the EEZ. Recreational vessels and
vessels fishing for multispecies exclusively in state waters are exempt
from this requirement.
(b) Limited access permits--(1) Eligibility--(i) Limited access
multispecies permit. To be eligible for a multispecies limited access
permit, specified in Sec. 651.22, in 1996 and thereafter, a vessel must
have been issued a limited access multispecies permit for the preceding
year, must be replacing a vessel that was issued a limited access
multispecies permit for the preceding year, or must qualify for a 1996
limited access multispecies permit under paragraph (b)(1)(ii) of this
section.
(ii) Limited access Hook-Gear permit. A vessel issued a 1995 open
access Hook-Gear permit may apply for and obtain a 1996 limited access
Hook-Gear permit provided it meets the criteria for eligibility
described below. Vessels must apply for a limited access Hook-Gear
permit before September 1, 1996, to receive an automatic mailing of an
application to renew their permit in 1997 and to be ensured that their
permit application will be processed within the 30 days allowed under
paragraph (e) of this section. Vessels applying after December 31,
1996, will be ineligible to apply for a 1997 limited access Hook-Gear
permit. A vessel qualifying for a limited access Hook-Gear permit may
not change its limited access permit category. The criteria for
eligibility are as follows:
(A) The vessel held a 1995 open access Hook-Gear permit and
submitted to the Regional Director, no later than January 26, 1996,
fishing log reports dated between June 1, 1994 and June 1, 1995, when
fishing with hook gear under the open access Hook-Gear permit,
documenting landings of at least 500 lb (226.8 kg) of multispecies
finfish; or its equivalent in numbers of fish; or
(B) The vessel is replacing a vessel that meets the criteria set
forth in paragraph (b)(1)(ii)(A) of this section.
(2) Qualification restriction. Unless the Regional Director
determines to the contrary, no more than one vessel may qualify, at any
one time, for a limited access multispecies permit based on that or
another vessel's fishing and permit history. If more than one vessel
owner claims eligibility for a limited access multispecies permit,
based on one vessel's fishing and permit history, the Regional Director
shall determine who is entitled to qualify for the limited access
multispecies permit and the DAS
[[Page 27733]]
allocation according to paragraph (b)(3) of this section.
(3) Change in ownership. The fishing and permit history of a vessel
is presumed to transfer with the vessel whenever it is bought, sold, or
otherwise transferred, unless there is a written agreement, signed by
the transferor/seller and transferee/buyer, or other credible written
evidence, verifying that the transferor/seller is retaining the
vessel's fishing and permit history for purposes of replacing the
vessel.
(4) Replacement vessels. To be eligible for a limited access permit
under this section, the replacement vessel must meet the following
criteria and any applicable criteria under paragraph (b)(5) of this
section:
(i) The replacement vessel's horsepower may not exceed by more than
20 percent the horsepower of the vessel that was initially issued a
limited access multispecies permit as of the date the initial vessel
applied for such permit.
(ii) The replacement vessel's length, gross registered tonnage, and
net tonnage may not exceed by more than 10 percent the length, gross
registered tonnage, and net tonnage of the vessel that was initially
issued a limited access multispecies permit as of the date the initial
vessel applied for such permit. For purposes of this paragraph, a
vessel not required to be documented under title 46, U.S.C. will be
considered to be 5 net tons. For undocumented vessels, gross registered
tonnage does not apply.
(5) Upgraded vessel. To remain eligible to retain a valid limited
access permit under this part, or to apply for or renew a limited
access permit under this part, a vessel may be upgraded, whether
through refitting or replacement, only if the upgrade complies with the
following limitations:
(i) The vessel's horsepower may be increased, whether through
refitting or replacement, only once. Such an increase may not exceed 20
percent of the horsepower of the vessel initially issued a limited
access multispecies permit as of the date the initial vessel applied
for such permit.
(ii) The vessel's length, gross registered tonnage, and net tonnage
may be upgraded, whether through refitting or replacement, only once.
Such an increase shall not exceed 10 percent each of the length, gross
registered tonnage, and net tonnage of the vessel initially issued a
limited access multispecies permit as of the date the initial vessel
applied for such permit. This limitation allows only one upgrade, at
which time any or all three specifications of vessel size may be
increased. This type of upgrade may be done separately from an engine
horsepower upgrade.
(6) Consolidation restriction. Limited access permits under this
permit and DAS allocations may not be combined or consolidated.
(7) Appeal of denial of limited access multispecies permit.
(i) Any applicant eligible to apply for an initial limited access
Hook-Gear permit who is denied such permit may appeal the denial to the
Regional Director within 30 days of the notice of denial. Any such
appeal must be based on one or more of the following grounds, must be
in writing, and must state the grounds for the appeal:
(A) The information used by the Regional Director was based on
mistaken or incorrect data;
(B) The applicant was prevented by circumstances beyond his/her
control from meeting relevant criteria; or
(C) The applicant has new or additional information.
(ii) The Regional Director will appoint a designee who will make
the initial decision on the appeal.
(iii) The appellant may request a review of the initial decision by
the Regional Director by so requesting in writing within 30 days of the
notice of the initial decision. If the appellant does not request a
review of the initial decision within 30 days, the initial decision
shall become the final administrative action of the Department of
Commerce.
(iv) Upon receiving the findings and a recommendation, the Regional
Director will issue a final decision on the appeal. The Regional
Director's decision is the final administrative action of the
Department of Commerce.
(v) Status of vessels pending appeal of a limited access permit
denial. A vessel denied a limited access Hook-Gear permit may fish
under the limited access Hook-Gear category, provided that the denial
has been appealed, the appeal is pending, and the vessel has on board a
letter from the Regional Director authorizing the vessel to fish under
the limited access Hook-Gear category. The Regional Director will issue
such a letter for the pendency of any appeal. Any such decision is the
final administrative action of the Department of Commerce on allowable
fishing activity pending a final decision on the appeal. The
authorizing letter must be carried on board the vessel. If the appeal
is finally denied, the Regional Director shall send a notice of final
denial to the vessel owner; the authorizing letter becomes invalid 5
days after receipt of the notice of denial.
(8) Limited access permit restrictions. (i) A vessel may be issued
a limited access multispecies permit in only one category during a
fishing year. Vessels are prohibited from changing limited access
multispecies permit categories during the fishing year, except as
provided in paragraph (f)(3) of this section. A vessel issued a limited
access Hook-Gear permit may not change its limited access permit
category at any time.
(ii) With the exception of Combination Vessels, sea scallop dredge
vessels are prohibited from being issued a limited access multispecies
permits.
(9) Confirmation of Permit History. Notwithstanding any other
provisions of this part, a person who does not currently own a fishing
vessel, but who has owned a qualifying vessel that has sunk, been
destroyed, or transferred to another person, may apply for and receive
a Confirmation of Permit History if the fishing and permit history of
such vessel has been retained lawfully by the applicant. To be eligible
to obtain a Confirmation of Permit History, the applicant must show
that the qualifying vessel meets the eligibility requirements, as
applicable, in this part. Issuance of a valid and current Confirmation
of Permit History preserves the eligibility of the applicant to apply
for or renew a limited access multispecies permit for a replacement
vessel based on the qualifying vessel's fishing and permit history at a
subsequent time, subject to the replacement provisions specified at
Sec. 651.4. A Confirmation of Permit History must be applied for and
received on an annual basis in order for the applicant to preserve the
fishing rights and limited access eligibility of the qualifying vessel.
If fishing privileges have been assigned or allocated previously under
this part based on the qualifying vessel's fishing and permit history,
the Confirmation of Permit History also preserves such fishing
privileges. Any decision regarding the issuance of a Confirmation of
Permit History for a qualifying vessel that has applied for or been
issued previously a limited access permit under this part is a final
agency action subject to judicial review under 5 U.S.C. 704.
Applications for a Confirmation of Permit History must be received by
the Regional Director by the beginning of the fishing year for which
the Confirmation of Permit History is required. Information
requirements for the Confirmation of Permit History application shall
be the same as those for a limited access permit with any request for
information about the vessel being applicable to the qualifying vessel
[[Page 27734]]
that has been sunk, destroyed or transferred. Vessel permit applicants
who have been issued a Confirmation of Permit History and who wish to
obtain a vessel permit for a replacement vessel based upon the previous
vessel history may do so pursuant to paragraph (b)(4) of this section.
(c) Open access permits. Subject to the restrictions in
Sec. 651.33, a U. S. vessel that has not been issued a limited access
multispecies permit may obtain an open access Handgear or Charter/party
permit. Vessels that are issued a valid scallop limited access permit
under Sec. 650.4 of this chapter and that have not been issued a
limited access multispecies permit may obtain an open access Scallop
Multispecies Possession Limit permit.
* * * * *
(e) Vessel permit application. Applicants for a permit under this
section must submit a completed application on an appropriate form
obtained from the Regional Director. The application must be signed by
the owner of the vessel, or the owner's authorized representative, and
be submitted to the Regional Director at least 30 days before the date
on which the applicant desires to have the permit made effective. The
Regional Director will notify the applicant of any deficiency in the
application pursuant to this section. Applicants for limited access
multispecies permits shall provide information with the application
sufficient for the Regional Director to determine whether the vessel
meets the eligibility requirements specified.
(f) Information requirements. (1) In addition to applicable
information required to be provided by paragraph (e) of this section,
an application for a permit must contain at least the following
information, and any other information required by the Regional
Director: Vessel name; owner name, mailing address, and telephone
number; U.S. Coast Guard documentation number and a copy of the
vessel's current U.S. Coast Guard documentation or, if undocumented,
state registration number and a copy of the current state registration;
party/charter boat license; home port and principal port of landing;
length overall; gross tonnage; net tonnage; engine horsepower; year the
vessel was built; type of construction; type of propulsion; approximate
fish-hold capacity; type of fishing gear used by the vessel; number of
crew; number of party or charter passengers licensed to carry (if
applicable); permit category; if the owner is a corporation, a copy of
the current Certificate of Incorporation, or other corporate papers
showing incorporation and the names of the current officers in the
Corporation, and the names and addresses of all shareholders owning 25
percent or more of the corporation's shares; if the owner is a
partnership, a copy of the current Partnership Agreement and the names
and addresses of all partners; if there is more than one owner, names
of all owners owning a 25 percent interest or more; and, name and
signature of the owner or the owner's authorized representative.
(2) Applications for an initial limited access Hook-Gear permit
must also contain the following information:
(i) If the engine horsepower was changed or a contract to change
the engine horsepower had been entered into prior to May 1, 1996, such
that it is different from that stated in the vessel's most recent
application for a Federal Fisheries Permit before May 1, 1996,
sufficient documentation to ascertain the different engine horsepower.
However, the engine replacement must be completed within 1 year of the
date of when the contract for the replacement engine was signed.
(ii) If the length, gross tonnage, or net tonnage was changed or a
contract to change the length, gross tonnage or net tonnage had been
entered into prior to May 1, 1996, such that it is different from that
stated in the vessel's most recent application for a Federal Fisheries
Permit, sufficient documentation to ascertain the different length,
gross tonnage or net tonnage. However, the upgrade must be completed
within 1 year from the date when the contract for the upgrade was
signed.
(3) A vessel issued a limited access multispecies permit may
request a change in permit category, unless otherwise restricted by
paragraph (b)(8) of this section. In 1996, the vessel owner, or the
owner's authorized representative, has one opportunity to request a
change in permit category by submitting an application to the Regional
Director by July 15, 1996. After this date, the vessel must fish only
in the DAS program assigned for the remainder of the 1996 fishing year
and must comply with the restrictions applicable to such category. Any
DAS that a vessel uses prior to a change in permit category will be
counted against its allocation received under any subsequent permit
category. For 1997 and beyond, limited access multispecies vessels
eligible to request a change in permit category must elect a category
prior to the start of each fishing year and will have one opportunity
to request a change in permit category by submitting an application to
the Regional Director within 45 days of receipt of their permit. After
this date, the vessel must fish only in the DAS program assigned for
the remainder of the fishing year and must comply with the restrictions
applicable to such category. Any DAS that a vessel uses prior to a
change in permit category will be counted against its allocation
received under any subsequent permit category. A vessel issued an open
access permit may request a different open access permit category by
submitting an application to the Regional Director at any time.
(4) A vessel issued a limited access combination permit or an
Individual DAS permit or a vessel applicant who elects to use a VTS
unit, is required to submit a copy of the vendor installation receipt
from a NMFS-certified VTS vendor as described in Sec. 651.28(a).
* * * * *
(h) * * *
(1) * * *
(ii) The application was not received by the Regional Director by
the deadlines set forth in paragraphs (b)(1)(ii), and (q) of this
section; or
(iii) The applicant and applicant's vessel failed to meet all
eligibility requirements described in paragraph (b)(1) of this section;
or
* * * * *
(q) Limited access multispecies permit renewal. To renew or apply
for a limited access multispecies permit a completed application must
be received by the Regional Director by the first day of the fishing
year for which the permit is required. Failure to renew a limited
access multispecies permit in any year bars the renewal of the permit
in subsequent years.
* * * * *
4. Section 651.9 is revised to read as follows:
Sec. 651.9 Prohibitions.
(a) In addition to the general prohibitions specified in Sec. 620.7
of this chapter, it is unlawful for any person owning or operating a
vessel issued a valid Federal multispecies vessel permit under this
part, a permit under Sec. 651.5 or a letter under Sec. 651.4(b)(7)(v),
to do any of the following:
(1) Fail to report to the Regional Director within 15 days any
change in the information contained in the permit application as
required under Sec. 651.4(m) or Sec. 651.5(k).
(2) Fish for, possess, or land multispecies finfish unless the
operator of the vessel has been issued an operator's permit under
Sec. 651.5, and a valid permit is on board the vessel.
(3) Sell, barter, trade, or transfer, or attempt to sell, barter,
trade, or
[[Page 27735]]
otherwise transfer, for a commercial purpose, other than transport, any
multispecies, unless the dealer or transferee has a dealer permit
issued under Sec. 651.6.
(4) Fail to comply in an accurate and timely fashion with the log
report, reporting, record retention, inspection, and other requirements
of Sec. 651.7(b).
(5) Fail to affix and maintain permanent markings as required by
Sec. 651.8.
(6) Enter, fail to remove gear from, or be in the areas described
in Sec. 651.21(f)(1) through Sec. 651.21(h)(1) during the time period
specified, except as provided in Sec. 651.21(d), (f)(2), (g)(2), and
(h)(2).
(7) Possess or land multispecies finfish smaller than the minimum
sizes specified in Sec. 651.23 or Sec. 651.34, as appropriate.
(8) Land, or possess on board a vessel, more than the possession
limits specified in Sec. 651.27(a), or violate any of the other
provisions of Sec. 651.27.
(9) Land, offload, remove, or otherwise transfer, or attempt to
land, offload, remove, or otherwise transfer fish from one vessel to
another vessel or other floating conveyance unless authorized in
writing by the Regional Director pursuant to Sec. 651.30(a).
(10) Refuse or fail to carry an observer if requested to do so by
the Regional Director.
(11) Interfere with or bar by command, impediment, threat,
coercion, or refusal of reasonable assistance, an observer conducting
his or her duties aboard a vessel.
(12) Fail to provide an observer with the required food,
accommodations, access, and assistance, specified in Sec. 651.31.
(b) In addition to the prohibitions specified in paragraph (a) of
this section, it is unlawful for any person owning or operating a
vessel issued a valid limited access multispecies permit under
Sec. 651.4(b) or a letter under Sec. 651.4(b)(7)(v), to do any of the
following:
(1) Fish for, possess, or land multispecies finfish with or from a
vessel that has had the horsepower of such vessel or its replacement
upgraded or increased in excess of the limitations specified in
Sec. 651.4(b)(4) or (b)(5).
(2) Fish for, possess, or land multispecies finfish with or from a
vessel that has had the length, gross registered tonnage, or net
tonnage of such vessel or its replacement increased or upgraded in
excess of limitations specified in Sec. 651.4(b)(4) or (b)(5).
(3) Combine, transfer, or consolidate DAS allocations.
(4) Fish for, possess at any time during a trip, or land per trip
more than the possession limit of regulated species specified in
Sec. 651.27(b) after using up the vessel's annual DAS allocation or
when not participating under the DAS program pursuant to Sec. 651.22,
unless otherwise exempted under Sec. 651.22(b)(3) or Sec. 651.34.
(5) Possess or land per trip more than the possession limit
specified under Sec. 651.22(b)(3)(i) if the vessel has been issued a
limited access Small Vessel permit.
(6) Fail to comply with the restrictions on fishing and gear
specified in Sec. 651.22(b)(4) if the vessel has been issued a limited
access Hook-Gear permit.
(7) Fail to declare and be out of the multispecies fishery as
required by Sec. 651.22(g), using the procedure described under
Sec. 651.22(h), as applicable.
(8) If required to have a VTS unit specified in Sec. 651.28(a) or
Sec. 651.29(a):
(i) Fail to have a certified, operational, and functioning VTS unit
that meets the specifications of Sec. 651.28(a) on board the vessel at
all times.
(ii) Fail to comply with the notification, replacement, or any
other requirements regarding VTS usage specified in Sec. 651.29(a).
(9) Fail to comply with any requirement regarding the DAS
notification specified in Sec. 651.29(a) or (b).
(10) Fail to comply with other notification requirements, including
a call-in system specified in Sec. 651.29(c), if required by the
Regional Director.
(11) Fail to provide notification of the beginning or ending of a
trip, as required under Sec. 651.29(b) and (d).
(c) In addition to the prohibitions specified in paragraph (a) of
this section, it is unlawful for any person owning or operating a
vessel issued a Handgear permit under Sec. 651.4(c) to do any of the
following:
(1) Possess at any time during a trip, or land per trip, more than
the possession limit of regulated species specified in Sec. 651.33(a),
unless the regulated species were harvested by a charter or party
vessel.
(2) Use, or possess on board, gear capable of harvesting
multispecies finfish other than rod and reel or handline while in
possession of, or fishing for, multispecies finfish.
(3) Possess or land multispecies finfish during the time period
specified in Sec. 651.33(a)(2).
(4) Violate any of the provisions of Sec. 651.33(a).
(d) In addition to the prohibitions specified in paragraph (a) of
this section, it is unlawful for any person owning or operating a
vessel issued a Scallop Multispecies Possession Limit permit under
Sec. 651.4(c) to do any of the following:
(1) Possess or land more than the possession limit of regulated
species specified in Sec. 651.33(c).
(2) Possess or land regulated species when not fishing under a
scallop DAS.
(3) Violate any of the provisions of Sec. 651.33(c).
(e) In addition to the general prohibitions specified in Sec. 620.7
of this chapter and the prohibitions specified in paragraphs (a)
through (d) of this section, it is unlawful for any person to do any of
the following:
(1) Fish for, possess, or land multispecies finfish unless:
(i) The multispecies finfish were being fished for or harvested by
a vessel issued a valid Federal multispecies permit under this part, or
a letter under Sec. 651.4(b)(7)(v), and the operator aboard such vessel
was issued an operator's permit under Sec. 651.5 and a valid permit is
on board the vessel;
(ii) The multispecies finfish were harvested by a vessel not issued
a Federal multispecies permit that fishes for and possesses
multispecies finfish exclusively in state waters; or
(iii) The multispecies finfish were harvested by a recreational
fishing vessel.
(2) Sell, barter, trade, or otherwise transfer, or attempt to sell,
barter, trade, or otherwise transfer, for a commercial purpose, any
multispecies finfish from a trip unless the vessel is issued a valid
Federal multispecies permit under this part, or a letter under
Sec. 651.4(b)(7)(v), and is not fishing under the charter/party
restrictions specified in Sec. 651.34(d), or unless the multispecies
finfish were harvested by a vessel that qualifies for the exception
specified in paragraph (e)(1)(ii) of this section.
(3) To be or act as an operator of a vessel fishing for or
possessing multispecies finfish in or from the EEZ, or issued a Federal
multispecies permit under this part, without having been issued and
possessing a valid operator's permit issued under Sec. 651.5.
(4) Purchase, possess, or receive for a commercial purpose, or
attempt to purchase, possess, or receive for a commercial purpose in
the capacity of a dealer, multispecies finfish taken from a fishing
vessel, unless in possession of a valid dealer permit issued under
Sec. 651.6; except that this prohibition does not apply to multispecies
finfish taken from a vessel that qualifies for the exception specified
in paragraph (e)(1)(ii) of this section.
[[Page 27736]]
(5) Purchase, possess, or receive for a commercial purpose or
attempt to purchase, possess, or receive multispecies finfish caught by
a vessel other than one issued a valid Federal multispecies permit
under this part, or a letter under Sec. 651.4(b)(7)(v), unless the
multispecies finfish were harvested by a vessel that qualifies for the
exception specified in paragraph (e)(1)(ii) of this section.
(6) Land, offload, cause to be offloaded, sell, or transfer; or
attempt to land, offload, cause to be offloaded, sell, or transfer
multispecies finfish from a fishing vessel, whether on land or at sea,
as an owner or operator without accurately preparing and submitting, in
a timely fashion, the documents required by Sec. 651.7, unless the
multispecies finfish were harvested by a vessel that qualifies for the
exception specified in paragraph (e)(1)(ii) of this section.
(7) Purchase or receive multispecies finfish, or attempt to
purchase or receive multispecies finfish, whether on land or at sea, as
a dealer without accurately preparing, submitting in a timely fashion,
and retaining the documents required by Sec. 651.7.
(8) Possess or land fish caught with nets of mesh smaller than the
minimum size specified in Sec. 651.20 of this chapter, or with scallop
dredge gear, unless said fish are caught, possessed or landed in
accordance with Sec. 651.20, or unless the vessel qualifies for the
exception specified in paragraph (e)(1)(ii) of this section.
(9) Fish with, use, or have on board, within the area described in
Sec. 651.20(a)(1) nets of mesh size smaller than the minimum mesh size
specified in Sec. 651.20(a)(2), except as provided in Sec. 651.20
(a)(3) through (a)(6), (a)(8), (a)(9), (e), (f), and (j), or unless the
vessel qualifies for the exception specified in paragraph (e)(1)(ii) of
this section.
(10) Fish for, harvest, possess, or land in or from the EEZ
northern shrimp, unless such shrimp were fished for or harvested by a
vessel meeting the requirements specified in Sec. 651.20(a)(3).
(11) Fish within the areas described in Sec. 651.20(a)(4) with nets
of mesh smaller than the minimum size specified in Sec. 651.20(a)(2),
unless the vessel is issued and possesses on board the vessel an
authorizing letter issued under Sec. 651.20(a)(4)(i).
(12) Violate any provisions of the Cultivator Shoals Whiting
Fishery specified in Sec. 651.20(a)(4).
(13) Fail to comply with the gear restrictions for the Stellwagen
Bank/Jeffrey's Ledge juvenile protection areas specified in
Sec. 651.20(a)(5).
(14) Fail to comply with the gear restrictions and time periods
specified for Small Mesh Area 1 and Small Mesh Area 2 in
Sec. 651.20(a)(8).
(15) Fail to comply with the requirements of the Nantucket Shoals
dogfish exemption specified in Sec. 651.20(a)(9).
(16) Fish with, use, or have available for immediate use within the
area described in Sec. 651.20(c)(1) nets of mesh size smaller than the
minimum size specified in Sec. 651.20(c)(2), except as provided in
Sec. 651.20(c)(3), (e), (f), and (j), or unless the vessel qualifies
for the exception specified in paragraph (e)(1)(ii) of this section.
(17) Fish with, use, or have available for immediate use within the
area described in Sec. 651.20(d)(1) nets of mesh size smaller than the
minimum size specified in Sec. 651.20(d)(2), except as provided in
Sec. 651.20 (e), (f), and (j), or unless the vessel qualifies for the
exception specified in paragraph (e)(1)(ii) of this section.
(18) Fish for the species specified in Sec. 651.20 (e) or (f) with
a net of mesh size smaller than the applicable mesh size specified in
Sec. 651.20(a)(2), (c)(2) or (d)(2), or possess or land such species,
unless the vessel is in compliance with the requirements specified in
Sec. 651.20(e) or (f), or unless the vessel qualifies for the exception
specified in paragraph (e)(1)(ii) of this section.
(19) Obstruct or constrict a net as described in Sec. 651.20 (h)(1)
and (h)(2).
(20) Fish for, land, or possess multispecies finfish harvested by
means of pair trawling or with pair trawl gear, except under the
provisions of Sec. 651.20(e), or unless the vessels that engaged in
pair trawling qualify for the exception specified in paragraph
(e)(1)(ii) of this section.
(21) Violate any of the restrictions on fishing with scallop dredge
gear specified in Sec. 651.20(i), or any of the other provisions of
Sec. 651.20(i).
(22) Violate any of the provisions of the state waters winder
flounder exemption program specified in Sec. 651.20(j).
(23) Enter or be in the area described in Sec. 651.21(a)(1) on a
fishing vessel, except as provided in Sec. 651.21(a)(2) and (d).
(24) Enter or be in the area described in Sec. 651.21(b)(1) on a
fishing vessel, except as provided in Sec. 651.21(b)(2).
(25) Enter or be in the area described in Sec. 651.21(c)(1), on a
fishing vessel, except as provided in Sec. 651.21(c)(2) and (d).
(26) Enter or be on a fishing vessel, or fail to remove gear from
the EEZ portion of the areas described in Sec. 651.21(f)(1) through
Sec. 651.21(h)(1), during the time period specified, except as provided
in Sec. 651.21(d), (f)(2), (g)(2), and (h)(2).
(27) Import, export, transfer, land, buy, sell or possess regulated
species smaller than the minimum sizes specified in Sec. 651.23, or
attempt to do any of the same, unless the regulated species were
harvested from a vessel that qualifies for the exception specified in
paragraph (e)(1)(ii) of this section.
(28) Violate any terms of a letter authorizing experimental fishing
pursuant to Sec. 651.24 or fail to keep such letter on board the vessel
during the period of the experiment.
(29) Fail to comply with the gear-marking requirements of
Sec. 651.25.
(30) Purchase, possess, or receive as a dealer, or in the capacity
of a dealer, fish in excess of the possession limits specified for
vessels issued a Federal multispecies permit.
(31) Tamper with, damage, destroy, alter, or in any way distort,
render useless, inoperative, ineffective, or inaccurate the VTS, VTS
unit, or VTS signal required to be installed on or transmitted by
vessel owners or operators required to use a VTS by this part.
(32) Violate any provision of the DAS notification program as
specified by Sec. 651.29.
(33) Land, offload, remove, or otherwise transfer, or attempt to
land, offload, remove or otherwise transfer multispecies finfish from
one vessel to another vessel, unless both vessels qualify under the
exception specified in paragraph (e)(1)(ii) of this section, or unless
authorized in writing by the Regional Director pursuant to
Sec. 651.30(a).
(34) Assault, resist, oppose, impede, harass, intimidate, or
interfere with a NMFS-approved observer aboard a vessel.
(35) Make any false statement, oral or written, to an authorized
officer or employee of NMFS, concerning the taking, catching,
harvesting, landing, purchase, sale, or transfer of any multispecies
finfish.
(36) Make any false statement in connection with an application
under Sec. 651.4 or Sec. 651.5 or on any report required to be
submitted or maintained under Sec. 651.7.
(37) Interfere with, obstruct, delay, or prevent by any means a
lawful investigation or search relating to the enforcement of this
part.
(38) Fail to have on board the vessel at least one standard tote as
specified under Sec. 651.20(i) and (j), Sec. 651.27, and Sec. 651.33(a)
and (c).
(f) In addition to the general prohibitions specified in Sec. 620.7
of this chapter and the prohibitions specified
[[Page 27737]]
in paragraphs (a) through (e) of this section, it is unlawful for the
owner or operator of a charter or party boat issued a permit under
Sec. 651.4, or of a recreational vessel, as applicable, to:
(1) Fish with gear in violation of the restrictions specified in
Sec. 651.34(a).
(2) Possess regulated species smaller than the minimum sizes
specified in Sec. 651.34(b).
(3) Possess cod and haddock in excess of the possession limits
specified in Sec. 651.34(c).
(4) Sell, trade, barter, or otherwise transfer, or attempt to sell,
trade, barter or otherwise transfer, multispecies finfish for a
commercial purpose as specified in Sec. 651.34(d).
(g) It is unlawful to violate any other provision of this part, the
Magnuson Act, or any regulation, permit or other authorization issued
under the Magnuson Act.
(h) Presumption. The possession for sale of regulated species that
do not meet the minimum sizes as specified in Sec. 651.23 will be prima
facie evidence that such regulated species were taken or imported in
violation of these regulations. Evidence that such fish were harvested
by a vessel not issued a permit under this part and fishing exclusively
within state waters will be sufficient to rebut the presumption. This
presumption does not apply to fish being sorted on deck.
5. Section 651.10 is revised to read as follows:
Sec. 651.10 Facilitation of enforcement.
(a) Radio hails. Permit holders, while underway, must be alert for
communications conveying enforcement instructions and immediately
answer via VHF-FM radio, channel 16, when hailed by an authorized
officer. Vessels not required to have VHF-FM radios by the Coast Guard
are exempt from this requirement.
(b) Also see Sec. 620.8 of this chapter.
6. In Sec. 651.20, paragraph (a)(9) is added and paragraphs (a)(2),
(a)(3)(i)(B), (a)(4)(i)(E), (a)(5), (a)(6)(iii)(C), (a)(7), paragraph
(a)(8) introductory text preceding the table, paragraphs (a)(8)(i),
(a)(8)(iii)(B), (c)(1), (c)(2), (c)(3)(ii), (c)(5), (d), (e)(2),
(f)(2), (g)(1), (g)(2), (i), (j) introductory text, and (j)(7) are
revised to read as follows:
Sec. 651.20 Regulated mesh areas and restrictions on gear and methods
of fishing.
* * * * *
(a) * * *
(2) Gear restrictions. (i) Except as provided in paragraphs
(a)(2)(iii) and (j) of this section, and unless otherwise restricted
under paragraphs (a)(2)(ii) and (a)(5) of this section, the minimum
mesh size for any trawl net, sink gillnet, Scottish seine, mid-water
trawl, or purse seine, on a vessel, or used by a vessel fishing under a
DAS in the multispecies DAS program in the GOM/GB regulated mesh area,
shall be 6 inches (15.24 cm) square or diamond mesh throughout the
entire net. This restriction does not apply to nets or pieces of nets
smaller than 3 ft (0.9 m) x 3 ft (0.9 m), (9 sq. ft (0.81 m \2\)), or
to vessels that have not been issued a Federal multispecies permit
under Sec. 651.4 and that are fishing exclusively in state waters.
(ii) Large Mesh vessels. When fishing in the GOM/GB regulated mesh
area, the minimum mesh size for any sink gillnet on a vessel, or used
by a vessel, fishing under a DAS in the Large Mesh DAS programs
specified in Sec. 651.22(b)(6) and (7) shall be 7 inch (17.78-cm)
diamond mesh throughout the entire net. The minimum mesh size for any
trawl net on a vessel, or used by a vessel, fishing under a DAS in the
Large Mesh DAS program shall be 8-inch (20.32-cm) diamond mesh
throughout the entire net. This restriction does not apply to nets or
pieces of nets smaller than 3 ft (0.9 m) x 3 ft (0.9 m), (9 sq. ft
(0.81 m \2\)), or to vessels that have not been issued a Federal
multispecies permit under Sec. 651.4 and that are fishing exclusively
in state waters.
(iii) Other gear and mesh exemptions. The minimum mesh size for any
trawl net, sink gillnet, Scottish seine, mid-water trawl, or purse
seine, on a vessel, or used by a vessel, when not fishing under the
multispecies DAS program and when fishing in the GOM/GB regulated mesh
area, is provided for under the exemptions specified in paragraphs
(a)(3), (a)(4), (a)(6), (a)(8), (a)(9), (e), (f), (i), and (j) of this
section. Vessels that are not fishing in one of these exemption
programs, or with exempted gear (as defined under this part), or under
the Scallop state waters exemption program specified in Sec. 650.27 of
this chapter, or under a multispecies DAS are prohibited from fishing
in the GOM/GB regulated mesh area.
(3) * * *
(i) * * *
(B) The following may be retained, with the restrictions noted, as
allowable bycatch species in the northern shrimp fishery as described
in this section: Longhorn sculpin; up to two standard totes of silver
hake (whiting); monkfish and monkfish parts up to 10 percent by weight
of all other species on board; and American lobster up to 10 percent by
weight of all other species on board or 200 lobsters, whichever is
less.
* * * * *
(4) * * *
(i) * * *
(E) The following may be retained, with the restrictions noted, as
allowable bycatch species in the Cultivator Shoal whiting fishery
exemption area as described in this section: Longhorn sculpin; monkfish
and monkfish parts up to 10 percent by weight of all other species on
board; and American lobster up to 10 percent by weight of all other
species on board or 200 lobsters, whichever is less.
* * * * *
(5) Stellwagen Bank/Jeffreys Ledge (SB/JL) juvenile protection
area. Except as provided in paragraphs (a)(3), (a)(6), (e), (f), and
(j) of this section, unless otherwise restricted in paragraph
(a)(2)(ii) of this section, the minimum mesh size for any trawl net,
Scottish seine, purse seine, or midwater trawl in use, or available for
immediate use as described under paragraph (c)(4) of this section, by a
vessel fishing in the following area shall be 6 inches (15.24 cm)
square mesh in the last 50 bars of the codend and extension piece for
vessels 45 ft (13.7 m) in length and less, and in the last 100 bars of
the codend and extension piece for vessels greater than 45 ft (13.7 cm)
in length.
(6) * * *
(iii) * * *
(C) Vessels may not fish for, possess on board, or land any species
of fish except when fishing in the areas specified in paragraphs
(a)(4), (a)(9), (c), and (d) of this section. Vessels may retain
exempted small mesh species as provided in paragraphs (a)(4)(i),
(a)(9)(i), (c)(3), and (d)(3) of this section.
(7) Addition or deletion of exemptions. (i) An exemption may be
added in an existing fishery for which there is sufficient data or
information to ascertain the amount of regulated species bycatch, if
the Regional Director, after consultation with the Council, determines
that the percentage of regulated species caught as bycatch is, or can
be reduced to, less than 5 percent by weight of total catch and that
such exemption will not jeopardize fishing mortality objectives. In
determining whether exempting a fishery may jeopardize meeting fishing
mortality objectives, the Regional Director may take into consideration
factors such as, but not limited to, juvenile mortality. A fishery can
be defined, restricted or allowed by area, gear, season, or other means
determined to be appropriate to reduce bycatch of regulated species. An
existing exemption may be deleted or modified if the Regional Director
determines that the catch of regulated species is equal to or greater
than 5
[[Page 27738]]
percent by weight of total catch, or that continuing the exemption may
jeopardize meeting fishing mortality objectives. Notification of
additions, deletions or modifications will be made through publication
of a rule in the Federal Register.
(ii) The Council may recommend to the Regional Director, through
the framework procedure specified in Sec. 651.40(b), additions or
deletions to exemptions for fisheries either existing or proposed for
which there may be insufficient data or information for the Regional
Director to determine, without public comment, percentage catch of
regulated species.
(iii) The Regional Director may, using the process described in
either paragraphs (a)(7)(i) or (ii) of this section, authorize an
exemption to fish for, possess and land white hake by vessels using
regulated mesh or hook gear. Determination of the percentage of
regulated species caught in such fishery shall not include white hake.
(iv) Exempted fisheries authorized under this paragraph are
subject, at minimum, to the following restrictions:
(A) With the exception of fisheries authorized under paragraph
(a)(7)(iii) of this section, possession of regulated species will be
prohibited.
(B) Possession of monkfish or monkfish parts will be limited to 10
percent by weight of all other species on board.
(C) Possession of lobsters will be limited to 10 percent by weight
of all other species on board or 200 lobsters, whichever is less.
(D) Possession of skate or skate parts in the SNE regulated mesh
area will be limited to 10 percent by weight of all other species on
board.
(8) Small Mesh Area 1/Small Mesh Area 2. Fisheries using nets of
mesh smaller than the minimum size specified in paragraph (a)(2) of
this section in subareas described as Small Mesh Area 1 and Small Mesh
Area 2 of the Small Mesh Exemption Area as specified under paragraph
(a)(3) of this section, and defined in this paragraph (a)(8), have been
found to meet the exemption qualification requirements specified in
paragraph (a)(7) of this section. Therefore, vessels subject to the
mesh restrictions specified in paragraph (a)(2) of this section may
fish with or possess nets of mesh smaller than the minimum size
specified in paragraph (a)(2) of this section in these areas, if the
vessel complies with the restrictions specified in paragraphs (a)(8)(i)
through (iii) of this section. These subareas are defined by straight
lines connecting the following points in the order stated (see Figure 4
to part 651):
* * * * *
(i) The fishing season is from July 15 through October 31 when
fishing under the exemption in Small Mesh Area 1.
* * * * *
(iii) * * *
(B) Allowable bycatch. Vessels fishing for the exempted species
identified in paragraph (a)(8)(iii)(A) of this section may also possess
and land the following species, with the restrictions noted, as
allowable bycatch species: Longhorn sculpin; monkfish and monkfish
parts up to 10 percent by weight of all other species on board; and
American lobster up to 10 percent by weight of all other species on
board or 200 lobsters, whichever is less.
(9) Nantucket Shoals dogfish fishery exemption area. The Nantucket
Shoals dogfish fishery as defined in this part has been found to meet
the exemption qualification requirements specified in paragraph (a)(7)
of this section. Therefore, vessels subject to the mesh restrictions
specified in paragraph (a)(2) of this section may fish with, use, or
possess nets of mesh smaller than the minimum size specified in
paragraph (a)(2) of this section in the Nantucket Shoals dogfish
fishery exemption area, if the vessel complies with the requirements
specified in paragraph (a)(9)(i) of this section. The Nantucket Shoals
dogfish fishery exemption area is defined by straight lines connecting
the following points in the order stated (see Figure 4 to part 651):
Nantucket Shoals Dogfish Exemption Area
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
NS1............................ 41 deg.45' N 70 deg.00' W.
NS2............................ 41 deg.45' N. 69 deg.20' W.
NS3............................ 41 deg.30' N. 69 deg.20' W.
Cl1............................ 41 deg.30' N. 69 deg.23' W.
NS5............................ 41 deg.26.5' N. 69 deg.20' W.
NS6............................ 40 deg.50' W. 69 deg.20' N.
NS7............................ 40 deg.50' W. 70 deg.00' N.
NS1............................ 41 deg.45' N 70 deg.00' W.
------------------------------------------------------------------------
(i) Requirements. Vessels authorized to fish in this fishery must
have on board an authorizing letter issued by the Regional Director.
Vessels are subject to the following conditions:
(A) Authorized vessels may not fish for, possess on board or land
any species of fish other than dogfish except as provided under
paragraph (a)(9)(i)(D) of this section.
(B) Authorized vessels may fish under this exemption during the
season of June 1 through October 15.
(C) When transiting the GOM/GB regulated mesh area as specified
under paragraph (a)(1) of this section, any nets of mesh smaller than
the regulated mesh size specified in paragraph (a)(2) of this section,
must be stowed according to the provisions of paragraph (c)(4) of this
section.
(D) The following may be retained, with the restrictions noted, as
allowable bycatch species in the Nantucket Shoals dogfish fishery
exemption area as described in this section: Longhorn sculpin, up to
two standard totes of silver hake (whiting); monkfish and monkfish
parts up to 10 percent by weight of all other species on board;
American lobster up to 10 percent by weight of all other species on
board or 200 lobsters, whichever is less; and skate or skate parts up
to 10 percent by weight of all other species on board.
(E) Authorized vessels must comply with any additional gear
restrictions specified in the authorization letter issued by the
Regional Director.
(ii) Sea Sampling. The Regional Director may conduct periodic sea
sampling to determine if there is a need to change the area or season
designation, and to evaluate the bycatch of regulated species.
* * * * *
(c) Southern New England regulated mesh area. (1) Area definition.
The Southern New England regulated mesh area is that area bounded on
the east by straight lines connecting the following points in the order
stated (see Figure 1 part 651):
Southern New England Regulated Mesh Area
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
G5............................. 41 deg.18.6' N. 66 deg.24.8' W.
G6............................. 40 deg.55.5' N. 66 deg.38' W.
G7............................. 40 deg.45.5' N. 68 deg.00' W.
G8............................. 40 deg.37' N. 68 deg.00' W.
G9............................. 40 deg.30.5' N. 69 deg.00' W.
NL3............................ 40 deg..7' N. 69 deg.00' W.
NL2............................ 40 deg.18.7' N. 69 deg.40' W.
NL1............................ 40 deg.50' N. 69 deg.40' W.
G11............................ 40 deg.50' N. 70 deg.00' W.
G12............................ ................... 70 deg.00' W.\1\
------------------------------------------------------------------------
\1\ Northward to its intersection with the shoreline of mainland
Massachusetts; and on the west by the eastern boundary of the Mid-
Atlantic regulated mesh area.
(2) Gear restrictions. (i) Minimum mesh restrictions. Except as
provided in paragraphs (c)(2) (iii) and (j) of this section, and unless
otherwise restricted under paragraph (c)(2)(ii) of this section, the
minimum mesh size for any trawl net, sink gillnet, Scottish seine,
purse seine or mid-water trawl, in use, or available for immediate use
as described under paragraph (c)(4) of this section, by a vessel
fishing under a DAS in the
[[Page 27739]]
multispecies DAS program in the Southern New England (SNE) regulated
mesh area, shall be 6 inches (15.24 cm) square or diamond mesh
throughout the entire net. This restriction does not apply to vessels
that have not been issued a Federal multispecies permit under
Sec. 651.4 and that are fishing exclusively in state waters.
(ii) Large Mesh vessels. When fishing in the SNE regulated mesh
area, the minimum mesh size for any sink gillnet on a vessel, or used
by a vessel, fishing under a DAS in the Large Mesh DAS program
specified in Sec. 651.22(b)(6) and (7) shall be 7 inch (17.78-cm)
diamond mesh throughout the entire net. The minimum mesh size for any
trawl net on a vessel, or used by a vessel, fishing under a DAS in the
Large Mesh DAS program shall be 8 inch (20.32-cm) diamond mesh
throughout the entire net. This restriction does not apply to nets or
pieces of nets smaller than 3 ft (0.9 m) x 3 ft (0.9 m), (9 sq. ft
(0.81 m \2\)), or to vessels that have not been issued a Federal
multispecies permit under Sec. 651.4 and that are fishing exclusively
in state waters.
(iii) Other gear and mesh exemptions. The minimum mesh size for any
trawl net, sink gillnet, Scottish seine, mid-water trawl, or purse
seine, in use, or available for immediate use as described under
paragraph (c)(4) of this section, by a vessel when not fishing under
the multispecies DAS program and when fishing in the SNE regulated mesh
area, is provided for under the exemptions specified in paragraphs
(c)(3), (e), (f), (i), and (j) of this section. Vessels that are not
fishing in one of these exemption programs, with exempted gear (as
defined under this part), or under the Scallop state waters exemption
program specified in Sec. 650.27 of this chapter, or under a
multispecies DAS are prohibited from fishing in the SNE regulated mesh
area.
(3) * * *
(ii) Possession and net stowage requirements. Vessels may possess
regulated species while in possession of nets with mesh smaller than
the minimum size specified in paragraph (c)(2)(i) of this section,
provided that the nets are stowed and are not available for immediate
use in accordance with paragraph (c)(4) of this section, and provided
that regulated species were not harvested by nets of mesh size smaller
than the minimum mesh size specified in paragraph (c)(2)(i) of this
section. Vessels fishing for the exempted species identified in
paragraph (c)(3)(i) of this section may also possess and retain the
following species, with the restrictions noted, as incidental take to
these exempted fisheries: Conger eels; searobins; black sea bass; red
hake; tautog (blackfish); blowfish (puffer); cunner; John Dory; mullet;
bluefish; tilefish; longhorn sculpin; fourspot flounder; alewife;
hickory shad; American shad; blueback herring; sea ravens; Atlantic
croaker; spot; swordfish; monkfish and monkfish parts up to 10 percent
by weight of all other species on board; American lobster up to 10
percent by weight of all other species on board or 200 lobsters,
whichever is less; and skate and skate parts up to 10 percent by weight
of all other species on board.
* * * * *
(5) Addition or deletion of exemptions. An exemption may be added,
deleted or modified pursuant to the procedure described in paragraph
(a)(7) of this section.
(d) Mid-Atlantic regulated mesh area. (1) Area definition. The Mid-
Atlantic (RMA) regulated mesh area is that area bounded on the east by
a line running from the Rhode Island shoreline at 41 deg.18.2' N. and
71 deg.51.5' W. (Watch Hill, RI) southwesterly through Fishers Island,
NY, to Race Point, Fishers Island, NY, and from Race Point, Fishers
Island, NY, southeasterly to the intersection of the 3 nautical mile
line east of Montauk Point, southwesterly along the 3 nautical mile
line to the intersection of 72 deg.30# W. Longitude and south along
that line to the intersection of the outer boundary of the EEZ. (see
Figure 1 to part 651).
(2) Gear restrictions. (i) Mesh size restrictions. Except as
provided in paragraph (j) of this section, and unless otherwise
restricted under paragraph (d)(2)(ii) of this section, the minimum mesh
size for any trawl net, sink gillnet, Scottish seine, purse seine or
mid-water trawl, in use, or available for immediate use as described
under paragraph (c)(4) of this section, by a vessel fishing under a DAS
in the multispecies DAS program in the MA regulated mesh area shall be
that specified in the summer flounder regulations at Sec. 625.24(a) of
this chapter. This restriction does not apply to vessels that have not
been issued a Federal multispecies permit under Sec. 651.4 and that are
fishing exclusively in state waters.
(ii) Large mesh vessels. When fishing in the MA regulated mesh
area, the minimum mesh size for any sink gillnet on a vessel, or used
by a vessel, fishing under a DAS in the Large Mesh DAS program
specified in Sec. 651.22(b)(6) and (b)(7) shall be 7 inch (17.78 cm)
diamond mesh throughout the entire net. The minimum mesh size for any
trawl net on a vessel, or used by a vessel, fishing under a DAS in the
Large Mesh DAS program shall be 8 inch (20.32 cm) diamond mesh
throughout the net. This restriction does not apply to nets or pieces
of nets smaller than 3 ft (0.9 m) x 3 ft (0.9 m), (9 sq. ft (0.81 m
\2\)), or to vessels that have not been issued a Federal multispecies
permit under Sec. 651.4 and that are fishing exclusively in state
waters.
(iii) Net stowage exemption. Vessels may possess regulated species
while in possession of nets with mesh smaller than the minimum size
specified in paragraph (d)(2)(i) of this section, provided that the
nets are stowed and are not availab
FR Doc. 96-13707 Northeast Multispecies Fishery; Amendment 7
le for immediate use in accordance
with paragraph (c)(4) of this section, and provided that regulated
species were not harvested by nets of mesh size smaller than the
minimum mesh size specified in paragraph (d)(2)(i) of this section.
(3) Additional Exemptions. The Regional Director may, using the
process described in either (a)(7)(i) or (a)(7)(ii), authorize an
exemption to fish for, possess, or land white hake by vessels using
regulated mesh or hook gear. Determination of the percentage of
regulated species caught in such a fishery shall not include white
hake.
(e) * * *
(2) When fishing under this exemption in the GOM/GB Regulated Mesh
Area vessels must have on board an authorizing letter issued by the
Regional Director;
* * * * *
(f) * * *
(2) When fishing under this exemption in the GOM/GB Regulated Mesh
Area vessels must have on board an authorizing letter issued by the
Regional Director;
* * * * *
(g) Mesh measurements--(1) Gillnets. Beginning October 15, 1996,
mesh size of gillnet gear shall be measured by lining up 5 consecutive
knots perpendicular to the float line and, with a ruler or tape
measure, measuring 10 consecutive stretched meshes on the diamond,
inside knot to inside knot. The mesh size shall be the average of the
measurements of the 10 consecutive meshes.
(2) All other nets. With the exception of gillnets, mesh size shall
be measured by a wedge-shaped gauge having a taper of 2 cm in 8 cm and
a thickness of 2.3 mm, inserted into the meshes under a pressure or
pull of 5 kg.
(i) Square-mesh measurement. Square mesh in the regulated portion
of the net shall be measured by placing the net gauge along the
diagonal line that connects the largest opening between opposite
corners of the square. The
[[Page 27740]]
square mesh size shall be the average of the measurements of 20
consecutive adjacent meshes from the terminus forward along the long
axis of the net. The square mesh shall be measured at least five meshes
away from the lacings of the net.
(ii) Diamond-mesh measurement. Diamond mesh in the regulated
portion of the net shall be measured running parallel to the long axis
of the net. The mesh size shall be the average of the measurements of
any series of 20 consecutive meshes. The mesh shall be measured at
least five meshes away from the lacings of the net.
* * * * *
(i) Scallop vessels. (1) Except as provided in paragraph (i)(2) of
this section, scallop vessels that possess a valid limited access
permit under Sec. 650.4 of this chapter, and that a scallop
multispecies possession limit permit under Sec. 650.4(c), and that are
fishing under the scallop DAS program described in Sec. 650.24, may
possess and land up to 300 lb (136.1 kg) of regulated species, unless
otherwise restricted pursuant to Sec. 651.27(a)(2). Vessels subject to
this possession limit shall have at least one standard tote on board.
(2) Combination vessels, and scallop vessels not equipped with or
fishing with dredge gear, fishing lawfully under a multispecies DAS are
subject to the gear restrictions specified in Sec. 651.20 and may
possess and land unlimited amounts of regulated species. Such vessels
may simultaneously fish under a scallop DAS.
(j) State waters winter flounder exemption. Any vessel issued a
Federal limited access multispecies permit under this part may fish
for, possess, or land winter flounder while fishing with nets of mesh
smaller than the minimum size specified in paragraphs (a)(2), (c)(2),
and (d)(2) of this section provided that:
* * * * *
(7) The vessel, when not fishing under the DAS program, does not
fish for, possess, or land more than 500 lb (226.8 kg) of winter
flounder and, when subject to this possession limit, has at least one
standard tote on board;
* * * * *
7. In Sec. 651.21, paragraphs (a)(2)(i), (b)(2)(i), (c)(2)(i), (d)
and (e) introductory text are revised, and paragraphs (f), (g), and (h)
are added to read as follows:
Sec. 651.21 Closed areas.
(a) * * *
(2) * * *
(i) Fishing with or using pot gear designed or used to take
lobsters, or pot gear designed or used to take hagfish, and that have
no other gear on board capable of catching multispecies finfish; and
* * * * *
(b) * * *
(2) * * *
(i) Fishing with or using pot gear designed or used to take
lobsters, or pot gear designed or used to take hagfish, and that have
no other gear on board capable of catching multispecies finfish;
* * * * *
(c) * * *
(2) * * *
(i) Fishing with or using pot gear designed and used to take
lobsters, or pot gear designed and used to take hagfish, and that have
no other gear on board capable of catching multispecies finfish;
* * * * *
(d) Transiting. Vessels may transit Closed Area I, the Nantucket
Lightship Closed Area, the Northeast Closure Area, the Mid-coast
Closure Area, and the Massachusetts Bay Closure Area, as defined in
paragraphs (a)(1), (c)(1), (f)(1), (g)(1), and (h)(1), respectively, of
this section, provided that their gear is stowed in accordance with the
provisions of paragraph (e) of this section.
(e) Gear stowage requirements. Vessels transiting the closed areas
must stow their gear as follows:
* * * * *
(f) Northeast Closure Area. (1) During the period August 15 through
September 13, no fishing vessel or person on a fishing vessel may
enter, fish, or be, and no fishing gear capable of catching
multispecies finfish, unless otherwise allowed in this part may be, in
the area known as the Northeast Closure Area (Figure 3 to part 651), as
defined by straight lines connecting the following points in the order
stated, except as specified in paragraphs (d) and (f)(2) of this
section:
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
NE1.......................... Maine shoreline....... 68 deg.55.0' W.
NE2.......................... 43 deg.29.6' N........ 68 deg.55.0' W.
NE3.......................... 44 deg.04.4' N........ 67 deg.48.7' W.
NE4.......................... 44 deg.06.9' N........ 67 deg.52.8' W.
NE5.......................... 44 deg.31.2' N........ 67 deg.02.7' W.
NE6.......................... Maine shoreline....... 67 deg.02.7' W.
------------------------------------------------------------------------
(2) Exceptions. Paragraph (f)(1) of this section does not apply to
persons on fishing vessels or fishing vessels:
(i) That have not been issued a Federal multispecies permit under
Sec. 651.4 and that are fishing exclusively in state waters.
(ii) Fishing with or using exempted gear as defined under this
part, excluding mid-water trawl gear, provided that there is no other
gear on board capable of catching multispecies finfish. (iii)
Classified as charter, party, or recreational.
(g) Mid-coast Closure Area. (1) During the period November 1
through December 31, no fishing vessel or person on a fishing vessel
may enter, fish, or be, and no fishing gear capable of catching
multispecies finfish unless otherwise allowed in this part may be, in
the area known as the Mid-coast Closure Area (Figure 3 to part 651), as
defined by straight lines connecting the following points in the order
stated, except as specified in paragraphs (d) and (g)(2) of this
section:
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
MC1.......................... 42 deg.30' N.......... Massachusetts
shoreline.
MC2.......................... 42 deg.30' N.......... 70 deg.15' W.
MC3.......................... 42 deg.40' N.......... 70 deg.15' W.
MC4.......................... 42 deg.40' N.......... 70 deg.00' W.
MC5.......................... 43 deg.00' N.......... 70 deg.00' W.
MC6.......................... 43 deg.00' N.......... 69 deg.30' W.
MC7.......................... 43 deg.15' N.......... 69 deg.30' W.
MC8.......................... 43 deg.15' N.......... 69 deg.00' W.
MC9.......................... Maine shoreline....... 69 deg.00' W.
------------------------------------------------------------------------
(2) Exceptions. Paragraph (g)(1) of this section does not apply to
persons on fishing vessels or fishing vessels:
(i) That have not been issued a Federal multispecies permit under
Sec. 651.4 and that are fishing exclusively in state waters.
(ii) Fishing with or using exempted gear as defined under this
part, excluding mid-water trawl gear, provided that there is no other
gear on board capable of catching multispecies finfish. (iii)
Classified as charter, party, or recreational.
(h) Massachusetts Bay Closure Area. (1) During the period March 1
through March 30, no fishing vessel or person on a fishing vessel may
enter, fish, or be, and no fishing gear capable of catching
multispecies finfish, unless otherwise allowed in this part may be, in
the area known as the Massachusetts Bay Closure Area (Figure 3 to part
651), as defined by straight lines connecting the following points in
the order stated, except as specified in paragraphs (d) and (h)(2) of
this section:
------------------------------------------------------------------------
Point latitude Longitude
------------------------------------------------------------------------
MB1 42 deg.30' N.......................... Massachusetts shoreline.
MB2 42 deg.30' N.......................... 70 deg.30' W.
MB3 42 deg.12' N.......................... 70 deg.30' W.
MB4 42 deg.12' N.......................... 70 deg.00' W.
MB5 Cape Cod shoreline.................... 70 deg.00' W.
MB6 42 deg.00' N.......................... Cape Cod shoreline.
[[Page 27741]]
MB7 42 deg.00' N.......................... Massachusetts shoreline.
------------------------------------------------------------------------
(2) Exceptions. Paragraph (h)(1) of this section does not apply to
persons on fishing vessels or fishing vessels:
(i) That have not been issued a Federal multispecies permit under
Sec. 651.4 and that are fishing exclusively in state waters.
(ii) Fishing with or using exempted gear as defined under this
part, excluding mid-water trawl gear, provided that there is no other
gear on board capable of catching multispecies finfish.
(iii) Classified as charter, party, or recreational.
8. Section 651.22 is revised to read as follows:
Sec. 651.22 Effort-control program for limited access vessels.
(a) A vessel issued a limited access multispecies permit under
Sec. 651.4(b) may not fish for, possess or land regulated species
except during a DAS as allocated under and in accordance with the
applicable DAS program described below, unless otherwise provided in
these regulations.
(b) DAS program--Permit categories, allocations and initial
assignments to categories. For the remainder of the 1996 fishing year,
all limited access multispecies permit holders shall be assigned to one
of the following DAS permit categories according to the criteria
specified. Permit holders may request a change in permit category for
the remainder of the 1996 fishing year and all fishing years thereafter
as specified in Sec. 651.4(f)(3). Each fishing year shall begin on May
1 and extend through April 30 of the following year.
(1) Individual DAS Category--(i) DAS allocation. Vessels assigned
to the Individual DAS category shall be allocated 65 percent of their
initial 1994 allocation baseline determined by regulations implementing
Amendment 5 to the FMP for the 1996 fishing year multiplied by the
proration factor equal to 0.83 and 50 percent of the vessel's initial
allocation baseline for the 1997 fishing year and beyond, as calculated
under paragraph (d)(1) of this section.
(ii) Initial assignment. All vessels issued valid Individual DAS
limited access multispecies permits, with the exception of vessels that
have also been issued limited access multispecies Gillnet category
permits, as of the effective date of the final rule for Amendment 7,
shall be initially assigned to this category.
(2) Fleet DAS Category--(i) DAS allocation. Vessels assigned to the
Fleet DAS category shall be allocated 139 DAS for the 1996 fishing year
multiplied by the proration factor equal to 0.83 for a total of 115
DAS, and 88 DAS for the 1997 fishing year and beyond.
(ii) Initial assignment. As of the effective date of the final rule
for Amendment 7, vessels issued valid permits in one of the following
categories shall be initially assigned to this category: Fleet DAS
permit holders; limited access multispecies Hook-Gear permit holders;
limited access multispecies Gillnet permit holders; limited access
multispecies 45 ft (13.7 m) category permit holders that are larger
than 20 ft (6.1 m) in length as determined by the most recent permit
application. determined by the most recent permit application.
(3) Small vessel category--(i) DAS allocation. Vessels qualified
and electing to fish under the Small Vessel category may retain cod,
haddock, and yellowtail flounder, combined up to 300 lb (136.1 kg) per
trip without being subject to DAS restrictions. These vessels are not
subject to a possession limit for the other multispecies finfish.
(ii) Initial assignment. All vessels issued a valid limited access
multispecies permit and fishing under the small boat exemption (less
than or equal to 45 ft (13.7 m)) permit as of the effective date of the
final rule for Amendment 7, and that are 20 ft (6.1 m) or less in
length as determined by the vessel's last application for a permit
shall be initially assigned to this category. Other vessels may elect
to change into this category as provided for in Sec. 651.4(f)(3) if
such vessel meets or complies with the following:
(A) The vessel is 30 ft (9.1 m) or less in length overall as
determined by measuring along a horizontal line drawn from a
perpendicular raised from the outside of the most forward portion of
the stem of the vessel to a perpendicular raised from the after most
portion of the stern.
(B) Vessels for which construction was begun after May 1, 1994,
must be constructed such that the quotient of the overall length
divided by the beam will not be less than 2.5.
(C) Acceptable verification for vessels 20 ft (6.1 m) or less in
length shall be U.S. Guard documentation or state registration papers.
For vessels over 20 ft (6.1 m) in length, the measurement of length
must be verified in writing by a qualified marine surveyor, or the
builder, based on the boat's construction plans, or by other means
determined acceptable by the Regional Director. A copy of the
verification must accompany an application for a Federal multispecies
permit issued under Sec. 651.4.
(D) Adjustments to the small-boat category requirements, including
changes to the length requirement, if required to meet fishing
mortality goals, may be made following a reappraisal and analysis under
the framework provisions specified in subpart C.
(4) Hook-Gear Category--(i) DAS allocation. Vessels issued a valid
limited access multispecies Hook-Gear permit shall be allocated 139 DAS
multiplied by the proration factor equal to 0.83 for a total of 115 DAS
for the 1996 fishing year and 88 DAS for the 1997 fishing year and
beyond. A vessel fishing in this permit category under the DAS program
must meet or comply with the following while fishing for, in possession
of, or landing, regulated species:
(A) Vessels, and persons on such vessels, are prohibited from
possessing gear other than hook gear on board the vessel.
(B) Vessels, and persons on such vessels, are prohibited from
fishing, setting, or hauling back, per day, or possessing on board the
vessel, more than 4,500 rigged hooks. An unbaited hook and gangion that
has not been secured to the ground line of the trawl on board a vessel
is deemed to be a replacement hook and is not counted toward the 4,500
hook limit. A ``snap-on'' hook is deemed to be a replacement hook if it
is not rigged or baited.
(ii) Initial assignment. No vessel shall be initially assigned to
the Hook-Gear category. Any vessel that meets the qualifications
specified in Sec. 651.4(b)(1) may apply for and obtain a permit to fish
under this category.
(5) Combination Vessel Category--(i) DAS allocation. Vessels
assigned to the Combination Vessel category shall be allocated 65
percent of their initial 1994 allocation as determined by regulations
implementing Amendment 5 to the FMP multiplied by the proration factor
equal to 0.83 for the 1996 fishing year and 50 percent of the vessel's
initial allocation baseline for the 1997 fishing year and beyond, as
calculated under paragraph (d)(1) of this section.
(ii) Initial assignment. All vessels issued a valid limited access
multispecies permit qualified to fish as a Combination Vessel as of the
effective date of the final rule for Amendment 7 shall be assigned to
this category.
(6) Large Mesh Individual DAS Category--(i) DAS allocation. Vessels
fishing under the Large Mesh Individual DAS category shall be allocated
a DAS increase that is equivalent to a 12 percent increase in DAS in
year 1 and a 36 percent increase in DAS in year 2
[[Page 27742]]
beyond the DAS allocations specified in (b)(1)(i) of this section,
which includes the proration factor for 1996. To be eligible to fish
under the Large Mesh Individual DAS permit category a vessel while
fishing under the DAS program, must fish with gillnet gear with a
minimum mesh net of 7 inch (17.78 cm) diamond or trawl gear with a
minimum mesh size of 8 inch (20.32 cm) diamond, for the entire fishing
year, as described under Sec. 651.20 (a)(2)(ii), (c)(2)(ii), and
(d)(2)(ii).
(ii) Initial assignment. No vessel shall be initially assigned to
the Large Mesh Individual DAS category. Any vessel that is initially
assigned to the Individual DAS, Fleet DAS, or Small Vessel permit
category may request and be granted a change in category into this
category as specified in Sec. 651.4(f)(3).
(7) Large Mesh Fleet DAS Category--(i) DAS allocation. Vessels
fishing under the Large Mesh Fleet DAS category shall be allocated 155
DAS multiplied by the proration factor equal to 0.83 for the 1996
fishing year, and 120 DAS for the 1997 fishing year and beyond. To be
eligible to fish under the Large Mesh Fleet DAS permit category a
vessel must fish with gillnet gear with a minimum mesh net of 7 inch
(17.78 cm) diamond or trawl gear with a minimum mesh size of 8 inch
(20.32 cm) diamond, as described under Sec. 651.20(a)(2)(ii),
(c)(2)(ii), and (d)(2)(ii).
(ii) Initial assignment. No vessel shall be initially assigned to
the Large Mesh Fleet DAS category. Any vessel that is initially
assigned to the Individual DAS, Fleet DAS, or Small Vessel permit
category may request and be granted a change in category into this
category as specified in Sec. 651.4(f)(3).
(c) The 1996 DAS appeals. (1) Previously exempted vessels. A vessel
that was issued a valid 1995 limited access multispecies permit, and
has been fishing under the Small boat exemption (less than or equal to
45 ft (13.7 m)), Hook-Gear or Gillnet permit categories, that elects to
fish under the Individual DAS category, and has not previously been
allocated Individual DAS, is eligible to appeal its allocation of DAS
if it has not previously done so, as described under paragraph (d)(2)
of this section. Each of these vessel's initial allocation of
Individual DAS will be considered to be 176 for purposes of this appeal
(that is, the Fleet DAS category baseline prior to the 1996-97
reductions).
(2) Exempted gillnet vessels that held an Individual DAS permit. A
vessel that was issued a valid 1995 limited access multispecies permit
and fishing under the Gillnet permit category and the Individual DAS
permit category, that elects to fish under the Individual DAS category,
is eligible to appeal its allocation of gillnet DAS, as described under
paragraph (d)(2) of this section. Each of these vessels' initial
allocation of Individual DAS will be considered to be 176 for purposes
of this appeal (that is, the Fleet DAS category baseline prior to the
1996-97 reductions).
(d) Individual DAS allocations--(1) Calculation of a vessel's
Individual DAS. The DAS assigned to a vessel for purposes of
determining that vessel's annual allocation under the Individual DAS
Program shall be calculated as follows:
(i) Calculate the total number of the vessel's multispecies DAS for
the years 1988, 1989, and 1990. Multispecies DAS are deemed to be the
total number of days the vessel was absent from port for a trip where
greater than 10 percent of the vessel's total landings were comprised
of regulated species, minus any days for such trips in which a scallop
dredge was used.
(ii) Exclude the year of least multispecies DAS.
(iii) If 2 years of multispecies DAS are remaining, average those
years' DAS, or, if only 1 year remains, use that year's DAS.
(2) Appeal of DAS allocation--(i) Initial allocations of Individual
DAS to those vessels authorized to appeal under paragraph (c) of this
section may be appealed to the Regional Director if a request to appeal
is received by the Regional Director no later than August 31, 1996, or
30 days after the initial allocation is made, whichever is later. Any
such appeal must be in writing and be based on one or more of the
following grounds:
(A) The information used by the Regional Director was based on
mistaken or incorrect data;
(B) The applicant was prevented by circumstances beyond his/her
control from meeting relevant criteria; or
(C) The applicant has new or additional information.
(ii) The Regional Director will appoint a designee who will make an
initial decision on the written appeal.
(iii) If the applicant is not satisfied with the initial decision,
the applicant may request that the appeal be presented at a hearing
before an officer appointed by the Regional Director.
(iv) The hearing officer shall present his/her findings to the
Regional Director and the Regional Director will make a decision on the
appeal. The Regional Director's decision on this appeal is the final
administrative decision of the Department of Commerce.
(3) Status of vessels pending appeal of DAS allocations. Vessels,
while their Individual DAS allocation is under appeal, may fish under
the Fleet DAS category until the Regional Director has made a final
determination on the appeal. Any DAS spent fishing for regulated
species by a vessel while that vessel's initial DAS allocation is under
appeal, shall be counted against any DAS allocation that the vessel may
ultimately receive.
(e) Accrual of DAS. DAS shall accrue in hourly increments, with all
partial hours counted as full hours.
(f) Good Samaritan credit. Limited access vessels fishing under the
DAS program and that spend time at sea for one of the following
reasons, and that can document the occurrence through the U.S. Coast
Guard, will be credited for the time documented:
(1) Time spent assisting in a U.S. Coast Guard search and rescue
operation; or
(2) Time spent assisting the U.S. Coast Guard in towing a disabled
vessel.
(g) Spawning season restrictions. Vessels issued a valid Small
Vessel category permit under paragraph (b)(3) of this section may not
fish for, possess, or land regulated species between March 1 and March
20 of each year. All other vessels issued limited access permits must
declare out and be out of the regulated multispecies finfish fishery
for a 20-day period between March 1 and May 31 of each calendar year
using the notification requirements specified under Sec. 651.29. If a
vessel owner has not declared, or taken, the period of time required
between March 1 and May 31 of each fishing year on or before May 12 of
each such year, the vessel is prohibited from fishing for, possessing
or landing any regulated species during the period May 12 through May
31, inclusive. If a vessel has taken a spawning season 20-day block out
of the multispecies fishery during May, 1996, it shall not be required
to take a 20-day block out of the multispecies fishery in 1997.
Beginning January 1, 1998, any such vessel must comply with the
spawning season restriction as specified in this part.
(h) Declaring DAS and 20-day blocks. A vessel's owner or authorized
representative shall notify the Regional Director of a vessel's
participation in the DAS program and declaration of its 20-day spawning
period out of the multispecies fishery using the notification
requirements specified under Sec. 651.29.
(i) Adjustments in annual DAS allocations. Adjustments in annual
DAS allocations, if required to meet fishing mortality goals, may be
made following
[[Page 27743]]
a reappraisal and analysis as specified in subpart C.
9. In Sec. 651.23, paragraph (a) introductory text, and paragraphs
(d) and (e) are revised to read as follows:
Sec. 651.23 Minimum fish size.
(a) Minimum fish sizes for recreational vessels and charter/party
vessels that are not fishing under a multispecies DAS are specified in
Sec. 651.34. All other vessels are subject to minimum fish sizes (total
length) as follows:
* * * * *
(d) Exception. Each person aboard a vessel issued a limited access
permit and fishing under the DAS program may possess up to 25 lb (11.3
kg) of fillets that measure less than the minimum size, if such fillets
are from legal-sized fish and are not offered or intended for sale,
trade, or barter.
(e) Adjustments of minimum size. (1) At anytime when information is
available, the Council will review the best available mesh selectivity
information to determine the appropriate minimum size for the species
listed in paragraph (a) of this section, except winter flounder,
according to the length at which 25 percent of the regulated species
would be retained by the applicable minimum mesh size.
(2) Upon determination of the appropriate minimum sizes, the
Council shall propose the minimum fish sizes to be implemented
following the procedures specified in subpart C.
(3) Additional adjustments or changes to the minimum fish sizes
specified in paragraphs (a) and (b) of this section, and exemptions as
specified in paragraphs (a) and (b) of this section, and exemptions as
specified in paragraph (c) of this section, may be made at any time
after implementation of the final rule as specified under subpart C.
10. Section 651.27 is revised to read as follows:
Sec. 651.27 Additional haddock possession restrictions.
(a) Haddock--(1) Multispecies DAS vessels. A vessel issued a
limited access multispecies permit under this part that is fishing
under a multispecies DAS may land, or possess on board, up to 1000 lb
(453.6 kg) of haddock. Haddock on board a vessel subject to this
possession limit must be separated from other species of fish and
stored so as to be readily available for inspection. Vessels subject to
this possession limit shall have on board the vessel at least one
standard tote.
(2) Scallop dredge vessels--(i) No person owning or operating a
scallop dredge vessel issued a permit under this part may land haddock
from, or possess haddock on board, a scallop dredge vessel, from
January 1 through June 30.
(ii) No person owning or operating a scallop dredge vessel without
a permit under this part may possess haddock in, or harvested from, the
EEZ, from January 1 through June 30.
(iii) From July 1 through December 31, no scallop dredge vessel or
persons owning or operating a scallop dredge vessel, that is fishing
under the scallop DAS program as described in Sec. 651.20(i), may land,
or possess on board, more than 300 lb (136.1 kg) of haddock. Haddock on
board a vessel subject to this possession limit must be separated from
other species of fish and stored so as to be readily available for
inspection. Vessels subject to this possession limit shall have on
board the vessel at least one standard tote.
(b) Vessels are subject to any other applicable possession limit
restrictions of this part.
11. In Sec. 651.28, paragraph (c) is removed, the heading and the
first sentence of paragraph (a), and paragraph (b) are revised to read
as follows:
Sec. 651.28 Monitoring requirements.
(a) Individual DAS limited access multispecies vessels. Unless
otherwise authorized or required by the Regional Director under
Sec. 651.29(b), vessel owners fishing under the Individual DAS program
and Combination Vessels must have installed on board an operational VTS
unit that meets the minimum performance criteria specified in paragraph
(a)(2) of this section, or as modified annually as specified in
paragraph (a)(1) of this section. * * *
(b) Fleet DAS and other limited access multispecies vessels.
Vessels issued limited access multispecies permits who are
participating in a DAS program and who are not required to provide
notification using a VTS shall be subject to the call-in requirements
specified in Sec. 651.29(b).
12. Section 651.29 is revised to read as follows:
Sec. 651.29 DAS notification program.
(a) VTS notification. Unless otherwise authorized by the Regional
Director as specified in paragraph (c) of this section, owners of
vessels issued limited access multispecies permits that have elected to
or are required to use a VTS system shall be subject to the following
requirements:
(1) Vessels that are issued limited access multispecies permits,
that have crossed the demarcation line specified under paragraph (d) of
this section, are deemed to be fishing under the DAS program unless the
vessel's owner or authorized representative declares the vessel out of
the multispecies fishery, by notifying the Regional Director through
the VTS. The owner or authorized representative of any vessel that has
been declared out of the multispecies fishery must notify the Regional
Director through the VTS prior to leaving port on the vessel's next
trip under the DAS program.
(2) If the VTS is not available, or not functional, and if
authorized by the Regional Director, a vessel owner must comply with
the call-in notification requirements specified in paragraph (b) of
this section.
(3) Notification that the vessel is not under the DAS program must
be received prior to the vessel leaving port. A change in status of a
vessel cannot be made after the vessel leaves port or before it returns
to port on any fishing trip.
(b) Call-in notification. Vessel owners authorized or required to
provide notification using the call-in system shall be subject to the
following requirements:
(1) The vessel owner or authorized representative shall notify the
Regional Director, prior to leaving port, that the vessel will be
participating in the applicable DAS program by calling 1-800-260-8204
or 508-281-9335, and providing the following information: Vessel name
and permit number, owner and caller name and phone number, the type of
trip to be taken, the port of departure, and that the vessel is
beginning a trip.
(2) A multispecies DAS begins once the call has been received and
confirmation given by the Regional Director.
(3) The vessel's confirmation numbers for the current and
immediately prior multispecies fishing trip must be maintained on board
the vessel and provided to an authorized officer upon request.
(4) Upon returning to port, at the end of a fishing trip as defined
in paragraph (d) of this section, the vessel owner or owner's
representative shall notify the Regional Director that the trip has
ended by calling 1-800-260-8204 or 508-281-9335, and providing the
following information: Vessel name and permit number, owner and caller
name and telephone number, port landed, confirmation number, and that
the fishing trip has ended.
(5) A DAS ends when the call has been received and confirmation
given by the Regional Director.
[[Page 27744]]
(6) Any vessel issued a limited access multispecies permit subject
to the DAS program and call-in requirement, that possess or lands
regulated species, except as provided in Sec. 651.34, shall be deemed
in the DAS program for purposes of counting DAS, regardless of whether
or not the vessel's owner or authorized representative provided
adequate notification as required by this part.
(7) Any change in status of a vessel cannot be done after leaving
port on any fishing trip.
(c) Temporary authorization for use of the call-in system. The
Regional Director may authorize or require, on a temporary basis, the
use of an alternative call-in system of notification. If the call-in
system is authorized or required, the Regional Director shall notify
affected permit holders through a letter, notification in the Federal
Register, or other appropriate means. Vessel owners authorized or
required by the Regional Director to provide notification by a call-in
system under this paragraph shall be subject to the requirements
specified in paragraph (b) of this section.
(d) Counting of DAS for vessels fishing under the VTS system. (1)
DAS for vessels that are under the VTS monitoring system described in
Sec. 651.29(a) are counted beginning with the first hourly location
signal received showing that the vessel crossed the Vessel Tracking
System Demarcation Line leaving port. A trip concludes and accrual of
DAS ends with the first hourly location signal received showing that
the vessel crossed the Vessel Tracking System Demarcation Line upon its
return to port.
(2) Vessel Tracking System Demarcation Line. The VTS Demarcation
Line is defined as straight lines connecting the following points in
the order stated (see Figures 6 and 7 to part 651):
Vessel Tracking System Demarcation Line
----------------------------------------------------------------------------------------------------------------
Description Longitude Latitude
----------------------------------------------------------------------------------------------------------------
1. Northern terminus point (Canada land mass)...... 45 deg.03' N. 66 deg.47' W.
2. A point east of West Quoddy Head Light.......... 44 deg.48.9' N. 66 deg.56.1' W.
3. A point east of Little River Light.............. 44 deg.39.0' N. 67 deg.10.5' W.
4. Whistle Buoy ``8BI'' (SSE of Baker Island)...... 44 deg.13.6' N. 68 deg.10.8' W.
5. Isle au Haut Light.............................. 44 deg.03.9' N. 68 deg.39.1' W.
6. Pemaquid Point Light............................ 43 deg.50.2' N. 69 deg.30.4' W.
7. A point west of Halfway Rock.................... 43 deg.38.0' N. 70 deg.05.0' W.
8. A point east of Cape Neddick Light.............. 43 deg.09.9' N. 70 deg.34.5' W.
9. Merrimack River Entrance ``MR'' Whistle Buoy.... 42 deg.48.6' N. 70 deg.47.1' W.
10. Halibut Point Gong Buoy ``1AHP''............... 42 deg.42.0' N. 70 deg.37.5' W.
11. Connecting reference point..................... 42 deg.40' N. 70 deg.30' W.
12. Whistle Buoy ``2'' off Eastern Point........... 42 deg.34.3' N. 70 deg.39.8' W.
13. The Graves Light (Boston)...................... 42 deg.21.9' N. 70 deg.52.2' W.
14. Minots Ledge Light............................. 42 deg.16.2' N. 70 deg.45.6' W.
15. Farnham Rock Lighted Bell Buoy................. 42 deg.05.6' N. 70 deg.36.5' W.
16. Cape Cod Canal Bell Buoy ``CC''................ 41 deg.48.9' N. 70 deg.27.7' W.
17. A point inside Cape Cod Bay.................... 41 deg.48.9' N. 70 deg.05' W.
18. Race Point Lighted Bell Buoy ``RP''............ 42 deg.04.9' N. 70 deg.16.8' W.
19. Peaked Hill Bar Whistle Buoy ``2PH''........... 42 deg.07.0' N. 70 deg.06.2' W.
20. Connecting point, off Nauset Light............. 41 deg.50' N. 69 deg.53' W.
21. A point south of Chatham ``C'' Whistle Buoy.... 41 deg.38' N. 69 deg.55.2' W.
22. A point in eastern Vineyard Sound.............. 41 deg.30' N. 70 deg.33' W.
23. A point east of Martha's Vineyard.............. 41 deg.22.2' N. 70 deg.24.6' W.
24. A point east of Great Pt. Light, Nantucket..... 41 deg.23.4' N. 69 deg.57' W.
25. A point SE of Sankaty Head, Nantucket.......... 41 deg.13' N. 69 deg.57' W.
26. A point west of Nantucket...................... 41 deg.15.6' N. 70 deg.25.2' W.
27. Squibnocket Lighted Bell Buoy ``1''............ 41 deg.15.7' N. 70 deg.46.3' W.
28. Wilbur Point (on Sconticut Neck)............... 41 deg.35.2' N. 70 deg.51.2' W.
29. Mishaum Point (on Smith Neck).................. 41 deg.31.0' N. 70 deg.57.2' W.
30. Sakonnet Entrance Lighted Whistle Buoy ``SR''.. 41 deg.25.7' N. 71 deg.13.4' W.
31. Point Judith Lighted Whistle Buoy ``2''........ 41 deg.19.3' N. 71 deg.28.6' W.
32. A point off Block Island Southeast Light....... 41 deg.08.2' N 71 deg.32.1' W.
33. Shinnecock Inlet Lighted Whistle Buoy ``SH''... 40 deg.49.0' N. 72 deg.28.6' W.
34. Scotland Horn Buoy ``S'', off Sandy Hook (NJ).. 40 deg.26.5' N. 73 deg.55.0' W.
35. Barnegat Lighted Gong Buoy ``2''............... 39 deg.45.5' N. 73 deg.59.5' W.
36. A point east of Atlantic City Light............ 39 deg.21.9' N. 74 deg.22.7' W.
37. A point east of Hereford Inlet Light........... 39 deg.00.4' N. 74 deg.46' W.
38. A point east of Cape Henlopen Light............ 38 deg.47' N. 75 deg.04' W.
39. A point east of Fenwick Island Light........... 38 deg.27.1' N. 75 deg.02' W.
40. A point NE of Assateague Island (VA)........... 38 deg.00' N. 75 deg.13' W.
41. Wachapreague Inlet Lighted Whistle Buoy ``A''.. 37 deg.35.0' N. 75 deg.33.7' W.
42. A point NE of Cape Henry....................... 36 deg.55.6' N. 75 deg.58.5' W.
43. A point east of Currituck Beach Light.......... 36 deg.22.6' N. 75 deg.48' W.
44. Oregon Inlet (NC) Whistle Buoy................. 35 deg.48.5' N. 75 deg.30' W.
45. Wimble Shoals, east of Chicamacomico........... 35 deg.36' N. 75 deg.26' W.
46. A point SE of Cape Hatteras Light.............. 35 deg.12.5' N. 75 deg.30' W.
47. Hatteras Inlet Entrance Buoy ``HI''............ 35 deg.10' N. 75 deg.46' W.
48. Ocracoke Inlet Whistle Buoy ``OC''............. 35 deg.01.5' N. 76 deg.00.5' W.
49. A point east of Cape Lookout Light............. 34 deg.36.5' N. 76 deg.30' W.
50. Southern terminus point........................ 34 deg.45' N. 76 deg.41' W.
----------------------------------------------------------------------------------------------------------------
[[Page 27745]]
(e) Call-in for 20 day blocks. With the exception of vessels issued
a valid Small Vessel category permit, vessels subject to the spawning
season restriction described in Sec. 651.22 must notify the Regional
Director of the commencement date of their 20-day period out of the
multispecies fishery through either the VTS system or by calling 1-800-
260-8204 or 508-281-9335 and providing the following information:
Vessel name and permit number, owner and caller name and phone number,
and the commencement date of the 20 day period.
13. In Sec. 651.31, paragraph (d) is added to read as follows:
Sec. 651.31 At-sea observer coverage.
* * * * *
(d) Industry funded observer coverage. NMFS may accept observer
coverage funded by sources outside the U.S. Government provided the
following requirements are met:
(1) All coverage conducted by such observers is determined by NMFS
to be in compliance with NMFS' observer guidelines and procedures.
(2) The owner or operator of the vessel complies with all other
provisions of this part.
(3) The observer is approved by the Regional Director.
14. Section 651.32 is revised to read as follows:
Sec. 651.32 Sink gillnet requirements to reduce harbor porpoise takes.
(a) Areas closed to sink gillnets. (1) Harbor porpoise take
restrictions. The closed area restrictions prohibiting sink gillnets in
the areas and times specified in Sec. 651.21(f) through (h) are
implemented in order to reduce the takes of harbor porpoise consistent
with the harbor porpoise mortality reduction goals.
(2) Additional harbor porpoise area closures. All persons owning or
operating vessels must remove all of their sink gillnet gear from, and
may not use, set, haul back, fish with, or possess on board, unless
stowed in accordance with Sec. 651.21(e)(4), a sink gillnet in the EEZ
portion of the areas and for the times specified in paragraphs
(a)(2)(i) and (ii) of this section; and, all persons owning or
operating vessels issued a Federal multispecies limited access permit
must remove all of their sink gillnet gear from, and may not use, set,
haul back, fish with, or possess on board a vessel, unless stowed in
accordance with Sec. 651.21(e)(4), a sink gillnet in the areas, and for
the times specified, in paragraphs (a)(2)(i) and (ii) of this section.
(i) Mid-coast Closure Area. During the period March 25 through
April 25 of each fishing year, the restrictions and requirements
specified under paragraph (a)(2) of this section shall apply to the
Mid-coast Closure Area, as defined under Sec. 651.21(g)(1).
(ii) Cape Cod South Area Closure. During the period March 1 through
March 30 of each fishing year, the restrictions and requirements
specified under paragraph (a)(2) of this section shall apply to an area
known as the Cape Cod South Area Closure which is an area bounded by
straight lines connecting the following points in the order stated (see
Figure 9 of this part).
Cape Cod South Closure Area
------------------------------------------------------------------------
Point Latitude Longitude
------------------------------------------------------------------------
CCS1.......................... RI shoreline.......... 71 deg.45' W.
CCS2.......................... 40 deg.40' N.......... 71 deg.45' W.
CCS3.......................... 40 deg.40' N.......... 70 deg.30' W.
CCS4.......................... MA shoreline.......... 70 deg.30' W.
------------------------------------------------------------------------
(b) Framework adjustment. (1) At least annually the Regional
Director will provide the Council with the best available information
on the status of Gulf of Maine harbor porpoise including estimates of
abundance and estimates of bycatch in the sink gillnet fishery. Within
60 days of receipt of that information, the Council's Harbor Porpoise
Review Team shall complete a review of the data, assess the adequacy of
existing regulations, evaluate the impacts of other measures that
reduce harbor porpoise take and, if necessary, recommend additional
measures in light of the Council's harbor porpoise mortality reduction
goals. In addition, the HPRT shall make a determination on whether
other conservation issues exist that require a management response to
meet the goals and objectives outlined in the FMP. The HPRT shall
report its findings and recommendations to the Council.
(2) After receiving and reviewing the HPRT's findings and
recommendations, the Council shall determine whether adjustments or
additional management measures are necessary to meet the goals and
objectives of the FMP. If the Council determines that adjustments or
additional management measures are necessary, or at any other time in
consultation with the HPRT, it shall develop and analyze appropriate
management actions over the span of at least two Council meetings.
(3) The Council may request at any time that the HPRT review and
make recommendations on any harbor porpoise take reduction measures or
develop additional take reduction proposals.
(4) The Council shall provide the public with advance notice of the
availability of the proposals, appropriate rationale, economic and
biological analyses, and opportunity to comment on them prior to and at
the second Council meeting. The Council's recommendation on adjustments
or additions to management measures must come from one or more of the
categories specified under Sec. 651.40(b)(1).
(5) If the Council recommends that the management measures should
be published as a final rule, the Council must consider at least the
factors specified in Sec. 651.40(b)(2).
(6) The Regional Director may accept, reject, or with Council
approval, modify the Council's recommendation, including the Council's
recommendation to publish a final rule, as specified under
Sec. 651.40(b)(3).
14. Section 651.33 is revised to read as follows:
Sec. 651.33 Open access permit restrictions.
(a) Handgear permit. A vessel issued a valid open access Handgear
permit issued under Sec. 651.4(c) is subject to the following
restrictions:
(1) The vessel may possess and land up to 300 lb (136.1 kg) of cod,
haddock, and yellowtail flounder, combined, per trip, and unlimited
amounts of the other multispecies finfish provided that it does not
use, or possess on board, gear other than rod and reel or handlines
while in possession of, fishing for, or landing multispecies finfish.
Vessels subject to this possession limit shall have at least one
standard tote on board.
(2) A vessel may not fish for, possess, or land regulated species
between March 1 and March 20 of each year.
(b) Charter/party permit. A vessel that has been issued a valid
open access Charter/party permit under Sec. 651.4(c), and has declared
into the charter/party fishery, is subject to the restrictions on gear,
recreational minimum fish sizes and prohibitions on sale specified in
Sec. 651.34, and any other applicable provisions of this part.
(c) Scallop Multispecies Possession Limit Permit. A vessel that has
been issued a valid open access Scallop Multispecies Possession Limit
permit under Sec. 651.4(c) may possess and land up to 300 lb (136.1 kg)
of regulated species when fishing under a scallop DAS as described
under Sec. 651.20(i), provided the vessel does not fish for, possess or
land haddock during January 1 through June 30 as specified under
Sec. 651.27(a)(2)(i). Vessels subject to this possession limit shall
have at least one standard tote on board.
[[Page 27746]]
15. Section 651.34 is added to subpart B to read as follows:
Sec. 651.34 Recreational and charter/party vessel restrictions.
(a) Recreational gear restrictions. Persons aboard charter or party
vessels permitted under this part and not fishing under the DAS
program, and recreational fishing vessels in the EEZ, are prohibited
from fishing with more than two hooks per line and one line per angler
and must stow all other fishing gear on board the vessel as specified
under Secs. 651.20(c)(4) and 651.21(e)(2), 651.21(e)(3) and
651.21(e)(4).
(b) Recreational minimum fish sizes. (1) Persons aboard charter or
party vessels permitted under this part and not fishing under the DAS
program, and recreational fishing vessels in the EEZ, are subject to
minimum fish sizes (total length) as follows:
Recreational
----------------------------------------------------------------------------------------------------------------
Inches
Species -------------------------------------------------------------
1996 1997+
----------------------------------------------------------------------------------------------------------------
Cod............................................... 20(50.8 cm).................. 21 (53.3 cm)
Haddock........................................... 20 (50.8 cm)................. 21 (53.3 cm)
Pollock........................................... 19 (48.3 cm)................. 19 (48.3 cm)
Witch flounder (gray sole)........................ 14 (35.6 cm)................. 14 (35.6 cm)
Yellowtail flounder............................... 13 (33.0 cm)................. 13 (33.0 cm)
American plaice (dab)............................. 14 (35.6 cm)................. 14 (35.6 cm)
Winter flounder (blackback)....................... 12 (30.5 cm)................. 12 (30.5 cm)
Redfish........................................... 9 (22.9 cm)................ 9 (22.9 cm)
----------------------------------------------------------------------------------------------------------------
(2) Exception. Persons aboard charter or party vessels permitted
under this part and not fishing under the DAS program, and recreational
fishing vessels in the EEZ, may possess fillets less than the minimum
size specified, if the fillets are taken from legal-sized fish and are
not offered or intended for sale, trade or barter.
(c) Possession restrictions. Each person on a recreational vessel
may not possess more than 10 cod and/or haddock, combined, in or
harvested from the EEZ:
(1) For purposes of counting fish, fillets will be converted to
whole fish at the place of landing by dividing fillet number by two. If
fish are filleted into a single (butterfly) fillet, such fillet shall
be deemed to be from one whole fish.
(2) Cod and haddock harvested by recreational vessels with more
than one person aboard may be pooled in one or more containers.
Compliance with the possession limit will be determined by dividing the
number of fish on board by the number of persons aboard. If there is a
violation of the possession limit on board a vessel carrying more than
one person, the violation shall be deemed to have been committed by the
owner and operator.
(3) Cod and haddock must be stored, so as to be readily available
for inspection.
(d) Restrictions on sale. It is unlawful to sell, barter, trade, or
otherwise transfer for a commercial purpose, or to attempt to sell,
barter, trade, or otherwise transfer for a commercial purpose,
multispecies finfish caught or landed by charter or party vessels
permitted under this part not fishing under a DAS or a recreational
fishing vessels fishing in the EEZ.
16. Section 651.40 is revised to read as follows:
Sec. 651.40 Framework Specifications.
(a) Annual review. The Multispecies Monitoring Committee (MSMC)
shall meet on or before November 15 of each year to develop target TACs
for the upcoming fishing year and options for Council consideration on
any changes, adjustment or additions to DAS allocations, closed areas
or other measures necessary to achieve the FMP goals and objectives.
(1) The MSMC must review available data pertaining to the
following:
(i) Catch and landings.
(ii) DAS and other measures of fishing effort.
(iii) Survey results.
(iv) Stock status.
(v) Current estimates of fishing mortality.
(vi) Any other relevant information.
(2) Based on this review, the MSMC shall recommend target TACs and
develop options necessary to achieve the FMP goals and objectives,
which may include a preferred option. The MSMC must demonstrate through
analysis and documentation that the options it develops are expected to
meet the FMP goals and objectives. The MSMC may review the performance
of different user groups or fleet sectors in developing options. The
range of options developed by the MSMC may include any of the
management measures in the FMP including, but not limited to:
(i) The annual target TACs which must be based on the projected
fishing mortality levels required to meet the goals and objectives
outlined in the FMP for the 10 regulated species.
(ii) DAS changes.
(iii) Possession limits.
(iv) Gear restrictions.
(v) Closed areas.
(vi) Permitting restrictions.
(vii) Minimum fish sizes.
(viii) Recreational fishing measures.
(ix) Any other management measures currently included in the FMP.
(3) The Council shall review the recommended target TACs and all of
the options developed by the MSMC, other relevant information, consider
public comment, and develop a recommendation to meet the FMP objective
that is consistent with other applicable law. If the Council does not
submit a recommendation that meets the FMP objectives and is consistent
with other applicable law, the Regional Director may adopt any option
developed by the MSMC, unless rejected by the Council, as specified in
(a)(6) of this section, provided that the option meets the FMP
objective and is consistent with other applicable law.
(4) Based on this review, the Council shall submit a recommendation
to the Regional Director of any changes, adjustments or additions to
DAS allocations, closed areas or other measures necessary to achieve
the FMP's goals and objectives. Included in the Council's
recommendation will be supporting documents, as appropriate, concerning
the environmental and economic impacts of the proposed action and the
other options considered by the Council.
(5) If the Council submits, on or before January 7, a
recommendation to the Regional Director after one Council meeting, and
the Regional Director concurs with the recommendation, the Regional
Director shall publish the
[[Page 27747]]
Council's recommendation in the Federal Register as a proposed rule.
The Federal Register notification of proposed action will provide for a
30-day public comment period. The Council may instead submit its
recommendation on or before February 1 if it chooses to follow the
framework process outlined in paragraph (b) of this section and
requests that the Regional Director publish the recommendation as a
final rule. If the Regional Director concurs that the Council's
recommendation meets the FMP objectives and is consistent with other
applicable law and determines that the recommended management measures
be published as a final rule, the action will be published as a final
rule in the Federal Register. If the Regional Director concurs that the
recommendation meets the FMP objectives and is consistent with other
applicable law and determines that a proposed rule is warranted, and as
a result the effective date of a final rule falls after the start of
the fishing year on May 1, fishing may continue. However, DAS used by a
vessel on or after May 1 will be counted against any DAS allocation the
vessel ultimately receives for that year.
(6) If the Regional Director concurs in the Council's
recommendation, a final rule shall be published in the Federal Register
on or about April 1 of each year, with the exception noted in paragraph
(a)(5) of this section. If the Council fails to submit a recommendation
to the Regional Director by February 1 that meets the FMP goals and
objectives, the Regional Director may publish as a proposed rule one of
the options reviewed and not rejected by the Council, provided that the
option meets the FMP objective and is consistent with other applicable
law. If, after considering public comment, the Regional Director
decides to approve the option published as a proposed rule, the action
will be published as a final rule in the Federal Register.
(b) Within season management action. The Council may, at any time,
initiate action to add or adjust management measures if it finds that
action is necessary to meet or be consistent with the goals and
objectives of the FMP.
(1) Adjustment process. After a management action has been
initiated, the Council shall develop and analyze appropriate management
actions over the span of at least two Council meetings. The Council
shall provide the public with advance notice of the availability of
both the proposals and the analysis, and opportunity to comment on them
prior to and at the second Council meeting. The Council's
recommendation on adjustments or additions to management measures must
come from one or more of the following categories:
(i) DAS changes.
(ii) Effort monitoring.
(iii) Data reporting.
(iv) Possession limits.
(v) Gear restrictions.
(vi) Closed areas.
(vii) Permitting restrictions.
(viii) Crew limits.
(ix) Minimum fish sizes.
(x) Onboard observers.
(xi) Minimum hook size and hook style.
(xii) The use of crucifiers in the hook fishery.
(xiii) Fleet sector shares.
(xiv) Recreational fishing measures.
(xv) Area closures and other appropriate measures to mitigate
marine mammal entanglements and interactions.
(xvi) Any other management measures currently included in the FMP.
(2) Council recommendation. After developing management actions and
receiving public testimony, the Council shall make a recommendation to
the Regional Director. The Council's recommendation must include
supporting rationale, and, if management measures are recommended, an
analysis of impacts, and a recommendation to the Regional Director on
whether to publish the management measures as a final rule. If the
Council recommends that the management measures should be published as
a final rule, the Council must consider at least the following factors
and provide support and analysis for each factor considered:
(i) Whether the availability of data on which the recommended
management measures are based allows for adequate time to publish a
proposed rule, and whether regulations have to be in place for an
entire harvest/fishing season.
(ii) Whether there has been adequate notice and opportunity for
participation by the public and members of the affected industry in the
development of the Council's recommended management measures.
(iii) Whether there is an immediate need to protect the resource.
(iv) Whether there will be a continuing evaluation of management
measures adopted following their implementation as a final rule.
(3) Regional Director action. If the Council's recommendation
includes adjustments or additions to management measures, and if after
reviewing the Council's recommendation and supporting information:
(i) The Regional Director concurs with the Council's recommended
management measures and determines that the recommended management
measures may be published as a final rule based on the factors
specified in paragraph (b)(2) of this section, the action will be
published in the Federal Register as a final rule; or
(ii) The Regional Director concurs with the Council's
recommendation and determines that the recommended management measures
should be published first as a proposed rule, the action will be
published as a proposed rule in the Federal Register. After additional
public comment, if the Regional Director concurs with the Council
recommendation, the action will be published as a final rule in the
Federal Register; or
(iii) The Regional Director does not concur, the Council will be
notified, in writing, of the reasons for the non-concurrence.
(c) Nothing in this section is meant to derogate from the authority
of the Secretary of Commerce to take emergency action under section
305(e) of the Magnuson Act.
17. Figure 5 to part 651 is removed and reserved, and Figures 1, 3,
and 4 to part 651 are revised to read as follows:
BILLING CODE 3510-22-W
[[Page 27748]]
[GRAPHIC] [TIFF OMITTED] TR31MY96.117
Figure 1 to Part 651--Regulated Mesh Area
[[Page 27749]]
[GRAPHIC] [TIFF OMITTED] TR31MY96.118
Figure 3 to Part 651--Closed Areas
[[Page 27750]]
[GRAPHIC] [TIFF OMITTED] TR31MY96.119
Figure 4 to Part 651--Exemption Areas
[FR Doc. 96-13707 Filed 5-30-96; 8:45 am]
BILLING CODE 3510-22-W
Complete official Federal Register PDF
FR Doc. 96-13699 Oregon-California Potatoes; Assessment Rate
[Federal Register Volume 61, Number 106 (Friday, May 31, 1996)]
[Rules and Regulations]
[Pages 27247-27248]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13699]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
7 CFR Part 947
[Docket No. FV96-947-1IFR]
Oregon-California Potatoes; Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This interim final rule establishes an assessment rate for the
Oregon-California Potato Committee (Committee) under Marketing Order
No. 947 for the 1996-97 and subsequent fiscal periods. The Committee is
responsible for local administration of the marketing order which
regulates the handling of Irish potatoes grown in Oregon-California.
Authorization to assess potato handlers enables the Committee to incur
expenses that are reasonable and necessary to administer the program.
DATES: Effective on July 1, 1996. Comments received by July 1, 1996,
will be considered prior to issuance of a final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent in triplicate to the Docket
Clerk, Fruit and Vegetable Division, AMS, USDA, PO Box 96456, room
2523-S, Washington, DC 20090-6456, FAX 202-720-5698. Comments should
reference the docket number and the date and page number of this issue
of the Federal Register and will be available for public inspection in
the Office of the Docket Clerk during regular business hours.
FOR FURTHER INFORMATION CONTACT: Martha Sue Clark, Marketing Order
Administration Branch, Fruit and Vegetable Division, AMS, USDA, PO Box
96456, room 2523-S, Washington, DC 20090-6456, telephone 202-720-9918,
FAX 202-720-5698, or Teresa L. Hutchinson, Northwest Marketing Field
Office, Fruit and Vegetable Division, AMS, USDA, Green-Wyatt Federal
Building, room 369, 1220 Southwest Third Avenue, Portland, OR 97204,
telephone 503-326-2724, FAX 503-326-7440.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement No. 114 and Order No. 947, both as amended (7 CFR part 947),
regulating the handling of Irish potatoes grown in Oregon-California,
hereinafter referred to as the ``order.'' The order is effective under
the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C.
601-674), hereinafter referred to as the ``Act.''
The Department of Agriculture (Department) is issuing this rule in
conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. Under the marketing order now in effect, Oregon-
California potato handlers are subject to assessments. Funds to
administer the order are derived from such assessments. It is intended
that the assessment rate as issued herein will be applicable to all
assessable potatoes beginning July 1, 1996, and continuing until
amended, suspended, or terminated. This rule will not preempt any State
or local laws, regulations, or policies, unless they present an
irreconcilable conflict with this rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with the Secretary a
petition stating that the order, any provision of the order, or any
obligation imposed in connection with the order is not in accordance
with law and request a modification of the order or to be exempted
therefrom. Such handler is afforded the opportunity for a hearing on
the petition. After the hearing the Secretary would rule on the
petition. The Act provides that the district court of the United States
in any district in which the handler is an inhabitant, or has his or
her principal place of business, has jurisdiction to review the
Secretary's ruling on the petition, provided an action is filed not
later than 20 days after the date of the entry of the ruling.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this rule on small entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 550 producers of Oregon-California potatoes
in the production area and approximately 40 handlers subject to
regulation under the marketing order. Small agricultural producers have
been defined by the Small Business Administration (13 CFR 121.601) as
those having annual receipts of less than $500,000, and small
agricultural service firms are defined as those whose annual receipts
are less than $5,000,000. The majority of Oregon-California potato
producers and handlers may be classified as small entities.
The Oregon-California potato marketing order provides authority for
the Committee, with the approval of the Department, to formulate an
annual budget of expenses and collect assessments from handlers to
administer the program. The members of the Committee are producers and
handlers of Oregon-California potatoes. They are familiar with the
Committee's needs and with the costs for goods and services in their
local area and are thus in a position to formulate an appropriate
budget and assessment rate. The assessment rate is formulated and
discussed in a public meeting. Thus, all directly affected persons have
an opportunity to participate and provide input.
The Committee met on March 28, 1996, and unanimously recommended
1996-97 expenditures of $61,200 and an assessment rate of $0.005 per
hundredweight of potatoes. In comparison, last year's budgeted
expenditures were $46,200. The assessment rate of $0.005 is $0.001 less
than last year's established rate. Major expenditures recommended by
the Committee for the 1996-97 year include $30,000 for an agreement
with the Oregon Potato Commission to provide services to the Committee
and $8,100 for a contingency fund. Budgeted expenses for these items in
1995-96 were $24,000 and $100, respectively. The contingency fund was
increased as the Committee is considering a possible marketing research
and development project in conjunction with the Oregon Potato
Commission.
The assessment rate recommended by the Committee was derived by
dividing anticipated expenses by expected shipments of Oregon-
California potatoes. Potato shipments for the year
[[Page 27248]]
are estimated at 7,400,000 hundredweight which should provide $37,000
in assessment income. Income derived from handler assessments, along
with funds from the Committee's authorized reserve, will be adequate to
cover budgeted expenses. Funds in the reserve at the beginning of the
1996-97 fiscal period are estimated at $55,245. Funds in the reserve
will be kept within the maximum permitted by the order.
While this rule will impose some additional costs on handlers, the
costs are in the form of uniform assessments on all handlers. Some of
the additional costs may be passed on to producers. However, these
costs will be offset by the benefits derived by the operation of the
marketing order. Therefore, the AMS has determined that this rule will
not have a significant economic impact on a substantial number of small
entities.
The assessment rate established in this rule will continue in
effect indefinitely unless modified, suspended, or terminated by the
Secretary upon recommendation and information submitted by the
Committee or other available information.
Although this assessment rate is effective for an indefinite
period, the Committee will continue to meet prior to or during each
fiscal period to recommend a budget of expenses and consider
recommendations for modification of the assessment rate. The dates and
times of Committee meetings are available from the Committee or the
Department. Committee meetings are open to the public and interested
persons may express their views at those meetings. The Department will
evaluate Committee recommendations and other available information to
determine whether modification of the assessment rate is needed.
Further rulemaking will be undertaken as necessary. The Committee's
1996-97 budget and those for subsequent fiscal periods will be reviewed
and, as appropriate, approved by the Department.
After consideration of all relevant material presented, including
the information and recommendation submitted by the Committee and other
available information, it is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good
cause that it is impracticable, unnecessary, and contrary to the public
interest to give preliminary notice prior to putting this rule into
effect, because: (1) The Committee needs to have sufficient funds to
pay its expenses which are incurred on a continuous basis; (2) the
1996-97 fiscal period begins on July 1, 1996, and the marketing order
requires that the rate of assessment for each fiscal period apply to
all assessable potatoes handled during such fiscal period; (3) handlers
are aware of this action which was unanimously recommended by the
Committee at a public meeting and is similar to other assessment rate
actions issued in past years; and (4) this interim final rule provides
a 30-day comment period, and all comments timely received will be
considered prior to finalization of this rule.
List of Subjects in 7 CFR Part 947
Marketing agreements, Potatoes, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 947 is
amended as follows:
PART 947--IRISH POTATOES GROWN IN MODOC AND SISKIYOU COUNTIES,
CALIFORNIA, AND IN ALL COUNTIES IN OREGON, EXCEPT MALHEUR COUNTY
1. The authority citation for 7 CFR part 947 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. A new subpart--Assessment Rates and a new Sec. 947.247 are added
to read as follows:
Note: This section will appear in the Code of Federal
Regulations.
Subpart--Assessment Rates
Sec. 947.247 Assessment rate.
On and after July 1, 1996, an assessment rate of $0.005 per
hundredweight is established for Oregon-California potatoes.
Dated: May 24, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-13699 Filed 5-30-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-13693 Color Illustrations of U.S. Currency
[Federal Register Volume 61, Number 106 (Friday, May 31, 1996)]
[Rules and Regulations]
[Pages 27280-27281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13693]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Secret Service
31 CFR Part 411
[1505-AA69]
Color Illustrations of U.S. Currency
AGENCY: Secret Service, Treasury.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Pursuant to the Counterfeit Deterrence Act of 1992, the Secret
Service permits color illustrations of United States currency provided
such illustrations are consistent with the requirements set out in this
final rule. Prior to the issuance of this rule, color illustrations of
U.S. currency were not permitted.
EFFECTIVE DATE: May 31, 1996.
FOR FURTHER INFORMATION CONTACT: Mark Mulligan, Attorney/Advisor,
Office of Chief Counsel, U.S. Secret Service, 1800 G Street, N.W., Room
842, Washington, D.C. 20223, (202) 435-5771.
SUPPLEMENTARY INFORMATION: On June 26, 1995 (60 FR 32929), the Secret
Service proposed to amend title 31, chapter IV of the Code of Federal
Regulations by adding part 411 which would permit color illustrations
of U.S. currency. At the time this proposal was issued, illustrations
of U.S. currency were only permitted provided the illustration was in
black and white and was of a size less than three-fourths or more than
one and one-half, in linear dimension, of each part so illustrated, and
provided the negatives and plates used in making the illustration were
destroyed after their final use. 18 U.S.C. 504. Color illustrations of
U.S. currency were not permitted.
Interested parties were invited to participate in the rulemaking
proceeding by submitting written comments on the proposal. Five
comments were received. The Secret Service carefully reviewed and
evaluated these comments. In considering these comments, the Secret
Service carefully weighed the recommendations and comments with the
federal government's compelling interest of preventing the
counterfeiting of U.S. currency.
Specifically, all the commentators to some extent questioned the
need for and practicality of the requirement that the term ``non-
negotiable'' be prominently and conspicuously placed across the center
portion of any color illustration. After careful consideration, the
Secret Service has decided to amend its proposal by removing the
requirement
[[Page 27281]]
that the term ``non-negotiable'' be placed on any color illustration.
One comment addressed the requirement that ``all negatives, plates,
positives, digitized storage medium, graphic files, magnetic medium,
optical storage devices, and any other thing used in the making of the
illustration that contain an image of the illustration or any part
thereof shall be destroyed and/or deleted or erased immediately after
their final use in accordance with this section.'' Proposed 31 CFR
411.1(a)(4). Specifically, this comment questioned the need for the
immediate destruction of such items. After careful consideration of
this comment and in order to be consistent with 18 U.S.C. 504, the
Secret Service has decided to remove the word ``immediately'' from the
final rule. Therefore, both the final rule and 18 U.S.C. 504 require
that such items be destroyed after their ``final use'' in accordance
with each respective provision.
Another comment suggested that the proposed rule should be expanded
by identifying certain kinds of illustrations that could be considered
not to give rise to an inference of an intent to defraud. The Secret
Service disagrees. It is the Secret Service's position that a single
rule applicable to all color illustrations be implemented for the sake
of simplicity and consistency. Such a rule will be more easily
understood by the public than a rule which contains exceptions for
various types of illustrations. Further, not all of the statutory
sections concerning the reproduction of U.S. currency require that an
intent to defraud be established in order for a violation of law to
occur. See, e.g., 18 U.S.C. 474.
The final rule requires the color illustrations to comply with the
current size restrictions set out in 18 U.S.C. 504. In addition, such
color illustrations must be one-sided.
The exceptions established by this rule, like the exceptions set
out in 18 U.S.C. 504, apply notwithstanding any other provision of
chapter 25 of Title 18 of the U.S. Code. However, the criminal
liability imposed by 18 U.S.C. 474 and other applicable sections of
chapter 25 of Title 18 of the U.S. Code could apply where a color
illustration of U.S. currency fails to meet the requirements imposed by
this regulation.
It has been determined that this document is not a significant
regulatory action under Executive Order 12866. This rule permits the
color illustrations of U.S. currency, which heretofore were prohibited
by law. Further, pursuant to section 605(b) of the Regulatory
Flexibility Act and for the reasons set forth above, it is hereby
certified that this regulation will not have a significant economic
impact on a substantial number of small entities.
Pursuant to 5 U.S.C. 553, it is also found and determined that good
cause exists for not postponing the effective date of this rule 30 days
after publication in the Federal Register because this rule permits a
practice heretofore prohibited by statute.
List of Subjects in 31 CFR Part 411
Counterfeiting, Currency.
In consideration of the foregoing, the Secret Service amends title
31, chapter IV of the Code of Federal Regulations by adding part 411 as
set forth below.
PART 411--COLOR ILLUSTRATIONS OF UNITED STATES CURRENCY
Authority: 18 U.S.C. 504; Treasury Directive Number 15-56, 58 FR
48539 (September 16, 1993)
Sec. 411.1 Color illustrations authorized.
(a) Notwithstanding any provision of chapter 25 of Title 18 of the
U.S. Code, authority is hereby given for the printing, publishing or
importation, or the making or importation of the necessary plates or
items for such printing or publishing, of color illustrations of U.S.
currency provided that:
(1) The illustration be of a size less than three-fourths or more
than one and one-half, in linear dimension, of each part of any matter
so illustrated;
(2) The illustration be one-sided; and
(3) All negatives, plates, positives, digitized storage medium,
graphic files, magnetic medium, optical storage devices, and any other
thing used in the making of the illustration that contain an image of
the illustration or any part thereof shall be destroyed and/or deleted
or erased after their final use in accordance with this section.
(b) [Reserved].
Paul A. Hackenberry,
Assistant Director, Office of Investigations.
[FR Doc. 96-13693 Filed 5-30-96; 8:45 am]
BILLING CODE 4810-42-P
Complete official Federal Register PDF
FR Doc. 96-13690 Atlantic Swordfish Fishery; 1996 Quotas, Minimum Size, Adjustment
[Federal Register Volume 61, Number 106 (Friday, May 31, 1996)]
[Rules and Regulations]
[Pages 27304-27308]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13690]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 630
[Docket No. 960314073-6145-02; I.D. 030896E]
RIN 0648-AI23
Atlantic Swordfish Fishery; 1996 Quotas, Minimum Size, Adjustment
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS issues this final rule to amend the regulations governing
the Atlantic swordfish fishery to: Reduce the annual total allowable
catch (TAC) to 2,625 metric tons (mt) dressed weight (dw) via a split
season (June 1 - May 31), decrease the minimum size to 73 cm (29
inches) cleithrum to caudal keel measure, eliminate the trip allowance
for undersized fish, and make reporting requirements consistent with
the
[[Page 27305]]
current logbook program. The intent of this action is to rebuild the
swordfish resource while allowing harvest of swordfish consistent with
recommendations of the International Commission for the Conservation of
Atlantic Tunas (ICCAT).
EFFECTIVE DATE: The rule is effective June 4, 1996.
ADDRESSES: Copies of Biological Opinions and a Final Environmental
Assessment/Regulatory Impact Review (EA/RIR) supporting this action may
be obtained from Rebecca Lent, Highly Migratory Species Management
Division, Office of Fisheries Conservation and Management, National
Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD
20910. Comments regarding the burden-hour estimate or any other aspect
of the collection-of-information requirement contained in this rule
should be sent to Rebecca Lent and to the Office of Management and
Budget (OMB), (0648-0016), Attention: NOAA Desk Officer, Washington, DC
20503.
FOR FURTHER INFORMATION CONTACT: Rebecca Lent, 301-713-2347; fax: 301-
713-0596.
SUPPLEMENTARY INFORMATION: The Atlantic swordfish fishery is managed
under the Fishery Management Plan for Atlantic Swordfish and its
implementing regulations at 50 CFR part 630 issued under the authority
of the Magnuson Fishery Conservation and Management Act (16 U.S.C. 1801
et seq.) and the Atlantic Tunas Convention Act (ATCA) (16 U.S.C. 971 et
seq.). Regulations issued under the authority of ATCA carry out the
recommendations of ICCAT.
Background information about the need for revisions to Atlantic
swordfish fishery regulations was provided in the proposed rule (61 FR
15212, April 5, 1996) and is not repeated here.
Management Measures
These regulatory changes will improve NMFS' ability to implement
the ICCAT recommendations and further the management objectives for the
domestic swordfish fisheries:
1. TAC and Fishing Year Definition
NMFS changes the definition of the fishing year for purposes of TAC
implementation to June 1 - May 31. NMFS also decreases the annual TAC
by 359 mt to 2,625 mt, which is consistent with the 1994 ICCAT
recommendation. All weights are in dw of swordfish, unless indicated
otherwise. The TAC is divided between a directed-fishery quota of 2,371
mt and a bycatch quota of 254 mt. The directed-fishery quota is divided
into two 1,185.5 mt semiannual quotas for each of the 6-month periods,
June 1 through November 30, and December 1 through May 31. Each of the
1,185.5 mt semiannual quotas is further subdivided into a drift gillnet
quota of 23.45 mt and a longline and harpoon quota of 1,162.05 mt. The
semiannual TAC for the longline and harpoon swordfish fishery is
reduced by the estimated semiannual dead discards of 97.6 mt to yield a
landing quota of 1,064.44 mt for each of the two semiannual periods.
Following a closure of the directed longline fishery in any
semiannual period, any overharvest or underharvest will be added to or
subtracted from the bycatch quota of 254 mt. The ability to add or
subtract underage or overage ensures that the United States will abide
by the annual ICCAT quotas.
The special set-aside quota for harpoon gear remains at 10 mt.
Due to the need to meet observer coverage requirements for the
drift gillnet fishery, the starting date for this gear type only, for
their 1996 quota, is delayed until July 1, 1996. Contracts, research
projects, and other arrangements for observer coverage necessary due to
the Category I status of the drift gillnet fishery could not be
modified in 1996 to accommodate the revised starting date of June 1,
1996. Thus, the first semiannual drift gillnet quota will be applicable
during the period of July 1 - November 30, 1996, and the second
semiannual quota will apply to the period of December 1, 1996 to May
31, 1997. The bridge period quota (see below) will be applied for drift
gillnet vessels during the period of January 1 - June 30, 1996. Thus,
drift gillnetters may fish prior to July 1, 1996, subject to the bridge
period quota, which has not been reached to date. The revised fishing
year and semiannual periods established herein for other fishing
categories will be applied for the drift gillnet fishery beginning June
1, 1997.
2. Bridge Period TAC
A bridge period TAC is determined for the first 5 months of 1996 at
a level equal to five twelfths of the 1995 U.S. quota, which is
equivalent to 1,149.5 mt (106 mt bycatch, 1021 mt longline, and 22.5 mt
drift gillnet). As discussed above, drift gillnet vessels may continue
fishing through June 1996 as long as the bridge period quota has not
been filled.
3. Alternative Minimum Size
The final rule implements the ICCAT-recommended alternative minimum
size of 119 cm (47 inches) lower jaw fork length (LJFL) with zero
tolerance for undersized fish, meaning that no swordfish less than this
smaller minimum size may be retained on board fishing vessels.
Therefore, the current tolerance of undersized fish (15 percent by
number per trip) is eliminated. The 119 cm (47'') LJFL is equivalent to
a cleithrum to caudal keel measure (CK) of 73 cm (29 inches) or 15 kg
(33 lb) dw.
4. Other Changes
Changes are made to the regulatory text to make vessel reporting
requirements consistent with the current logbook program.
Comments and Responses
1. Quota Reduction and Allocation
Comment: Most comments supported the reduction in TAC as
recommended by ICCAT. There was some concern, however, over the
calculation of discards, both in terms of the rate used and the fact
that only the United States deducts this estimate from their allowable
catch.
Response: NMFS agrees that a reduction in TAC to the level
recommended by ICCAT is not only necessary under ATCA but also
desirable, given that current catch levels exceed replacement yield.
The longline discard rate applied in setting the TAC is identical to
that used in 1995. However, as data become available, this discard rate
could be revised to account for the modification in the minimum size.
The United States reports estimated longline discards of undersized
swordfish to ICCAT, and had committed, for 1995 and 1996 only, to
reducing the TAC accordingly.
Comment: Some commenters felt that the drift gillnet quota should
be higher given the number of participants and the derby nature of the
fishery. Another commenter suggested that gear-specific quotas be
discontinued, to be replaced with a fixed season for the driftnet
fishery of 2 months.
Response: The percentage share allocated to the longline and drift
gillnet fishery is identical to that used in 1994 and 1995 and is based
on the share of total catch harvested by these user groups in 1988.
NMFS disagrees with the suggestion of having a season for drift
gillnetting rather than a quota, since this would only intensify the
derby-fishing nature of this gear category, particularly since it is
open access.
2. Split Season
Comment: Some commenters agreed with the split season as one option
to improve the economic condition of the swordfish fishermen under
declining
[[Page 27306]]
quotas. They indicated that, for the two periods of high likelihood for
a swordfish longline directed fishery closure, April/May are good
months for yellowfin tuna, while October/November have historically
been low price months for swordfish.
Response: NMFS agrees that the new semiannual periods might allow
for the best possible prices for swordfish catch, which is particularly
important to mitigate decline in exvessel revenue given the reduction
in TAC.
Comment: Some commenters expressed concern over the possible
increased interaction with bluefin tuna and/or protected species given
the change in the fishing season.
Response: The swordfish longline fishery has never been closed
during the months of June or July; therefore, it is unlikely that the
pattern of interaction with bluefin or other bycatch species would be
modified by this change in the fishing season. Fishing with the use of
drift gillnets in the first half of the existing semiannual period
generally began in earnest around mid-June; therefore, it is not
evident that a June 1 starting date would modify the pattern of
protected species interaction. However, given the need to meet observer
coverage requirements for the drift gillnet fishery, the starting date
for this gear type for 1996 only is delayed until July 1, 1996, to
accommodate arrangements already in place for this year's fishery.
Thus, the semiannual drift gillnet 1996 quota will be applicable during
the period of July 1 - November 30, 1996, and the second semiannual
quota will hold during the period of December 1, 1996 to May 31, 1997.
The revised fishing year and semiannual periods thus will be applied
for the drift gillnet fishery beginning June 1, 1997, unless further
information and/or analyses received before that date warrant a change
in this regulation.
3. Revised Minimum Size
Comment: Some commenters felt that the revised minimum size would
lead to decreased discards and facilitate enforcement. Others felt that
the minimum size should be increased to 50 lb and/or the average weight
at first reproduction (80 kg round weight, or 132 lb dw). Some
commenters also suggested that fishers be allowed to retain swordfish
less than the minimum size for their own consumption or for charity
purposes.
Response: NMFS agrees that implementation of the alternative
minimum size could lead to a reduction in the longline discard rate to
the extent that undersized fish that are now harvested under the 15
percent tolerance and/or discarded at sea are within the new, lower
minimum size range. An increase in the minimum size to 50 lb or 132 lbs
(reproductive weight) could lead to a significant increase in the
discard rate. Finally, retention of swordfish less than the alternative
minimum size could be counter to the ICCAT recommendation, with the
exception of the Second Harvest program which has been approved by
ICCAT.
Comment: Several commenters suggested that NMFS consider time-area
closures to reduce the catch of undersized swordfish.
Response: Preliminary research conducted by NMFS indicates certain
areas in which there is relatively higher interaction with undersized
swordfish. However, a complete analysis should be conducted on the
potential time-area closures and the impact of these closures on the
fishery. In addition, the revised minimum size and fishing season could
have an effect on the rate of small fish interaction. Time-area
closures may be considered in future rulemaking if analysis warrants.
Comment: It was noted that the ICCAT recommendation would
facilitate a possible ban on sale of swordfish under the minimum size
if a country adopts the alternative minimum size with zero tolerance.
This would allow the United States to halt the import of undersized
swordfish from Nations that do not comply with the ICCAT
recommendation.
Response: NMFS agrees that a ban on the sale of Atlantic swordfish
under the lower minimum size would facilitate enforcement and ensure
that ICCAT conservation efforts are not hampered by harvest and export
to the United States of undersized swordfish from non-complying
Nations. However, given the considerable volume of domestic and
imported Pacific swordfish that is handled nationwide, NMFS must
establish an enforceable system to document shipments of swordfish
harvested outside the management unit. Such a system is under
consideration but will require some time to comply with Paperwork
Reduction Act (PRA) requirement. In the meantime, since adoption of the
alternative minimum size will facilitate U.S. Atlantic enforcement and
may reduce the discard rate, NMFS is implementing the alternative
minimum size.
4. Other
Comment: There were continued comments regarding the need to allow
a 14-day offloading period for swordfish during a closure due to the
market effects of a sudden increase in landings.
Response: NMFS agrees that closure dates can cause a market glut
and lower prices. However, even a 14-day offloading window can cause
such a market glut, since vessels may have an incentive to wait until
the last day or two of this window to sell their swordfish. In
addition, given that the concern over sudden increase in supply comes
primarily from long-distance vessels that tend to take longer trips,
there is concern about the effect of further delaying the offloading on
the quality of the swordfish landed. Finally, a 14-day window only
would encourage vessels to return to port at the last minute, with
possible consequences on the catch rate in the final days, leading to
even earlier closure dates.
Comment: There were several comments on issues that are beyond the
scope of this rule, including: Requiring equal coverage for vessels of
all gear types, with a minimum of 50 percent coverage; establishing
target catch criteria for swordfish bycatch during closure of the
directed fishery; proposals to extend the fishing season; allowing more
than
30 days to comment on a proposed rule; and monitoring the U.S.
swordfish catch in the south Atlantic.
Response: These issues are beyond the scope of this rulemaking, the
primary purpose of which is to implement the 1996 TAC via the split
season, along with revising the minimum size. NMFS will consider the
comments above in future rulemaking. With respect to the monitoring of
swordfish catch in the South Atlantic, all U.S. permitted vessels are
currently subject to a reporting requirement, including negative
reporting.
Based on consideration of comments received, only one change was
made to the proposed rule, notably the date of effectiveness of the
split season for the drift gillnet fishery, as noted above.
Classification
This final rule is published under the authority of ATCA. The
Assistant Administrator for Fisheries, NOAA has determined that the
regulations contained in this rule are necessary to implement the
recommendations of ICCAT and are necessary for management of the
Atlantic swordfish fishery. The Assistant General Counsel for
Legislation and Regulation of the Department of Commerce certified to
the Chief Counsel for Advocacy of the Small Business Administration
that the proposed rule, if adopted, would not have a significant
economic impact on a substantial number of small entities. The 1996 TAC
represents about a 12-percent reduction from the TAC of the
[[Page 27307]]
previous year, which could result in short-term potential losses in
gross revenue of about $3.2 million. However, these potential losses
will be at least partially offset by increases in price due to
declining supply (demand is price-inelastic) and the split season. In
addition, pelagic longline vessels may redirect fishing effort to
Atlantic tunas, dolphin fish, and other species, as occurred in the
1995 season. As a result, a regulatory flexibility analysis was not
prepared. The RIR provides further discussion of the economic effects
of the rule.
This action has been determined to be not significant for purposes
of E.O. 12866.
NMFS has determined that there is good cause to waive partially the
30-day delay in the effective date normally required by section 553(d)
of the Administrative Procedure Act. Since this fishery is underway,
early implementation of the new TAC and minimum size will ensure
effective implementation of the ICCAT recommendations.
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 PRA unless that collection of information displays a currently
valid OMB Control Number.
This final rule includes changes to the regulatory text regarding
vessel reporting requirements in an effort to be consistent with
changes in the logbook program. However, there are no new collection-
of-information requirements since the proposed rule simply clarifies
requirements that have been approved by the OMB under Control Number
0648-0016 in 15 CFR part 902. Public reporting burden for this
collection of information is estimated to average 2 minutes for logbook
records and trip summaries.
These estimates include the time for reviewing instructions,
searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information.
Send comments regarding this burden estimate or any other aspects of
this collection of information, including suggestions for reducing this
burden, to NMFS and OMB (see ADDRESSES).
NMFS issued biological opinions under the Endangered Species Act on
September 1, 1995, and on February 2, 1996, indicating that the level
of impact and marine mammal takes from the longline and harpoon, and
drift gillnet swordfish fishery is not likely to jeopardize the
continued existence of any sea turtle species or any marine mammal
populations.
List of Subjects in 50 CFR Part 630
Fisheries, Fishing, Reporting and recordkeeping requirements,
Treaties.
Dated: May 24, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 630 is amended
as follows:
PART 630--ATLANTIC SWORDFISH FISHERY
1. The authority citation for part 630 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq. and 16 U.S.C. 971 et seq.
2. In Sec. 630.5, paragraph (a)(1) is revised to read as follows:
Sec. 630.5 Recordkeeping and reporting.
(a) Fishing vessel reports. (1) The owner and operator of a vessel
for which a vessel permit has been issued under Sec. 630.4 must ensure
that a daily logbook form is maintained of the vessel's swordfishing
effort, catch, and disposition on logbook forms available from the
Science and Research Director. Such forms must be submitted to the
Science and Research Director postmarked not later than the 7th day
after sale of the swordfish off-loaded from a trip. If no fishing
occurred during a month, a report so stating must be submitted in
accordance with instructions provided with the logbook forms. Logbooks
must be kept on board the vessel at all times.
* * * * *
3. In Sec. 630.7, paragraph (q) is revised to read as follows:
Sec. 630.7 Prohibitions.
* * * * *
(q) Possess on board a vessel a swordfish that is smaller than the
minimum size specified in Sec. 630.23(a).
* * * * *
4. Section 630.20 is revised to read as follows:
Sec. 630.20 Fishing Year.
The fishing year is June 1 through July 31.
5. In Sec. 630.23, paragraph (b) is removed, paragraphs (c) and (d)
are redesignated as paragraphs (b) and (c), respectively, and the first
sentence of paragraph (a) and the last sentence of newly designated
paragraph (b) are revised to read as follows:
Sec. 630.23 Harvest limitations.
(a) Minimum size. The minimum allowable size for possession on
board a fishing vessel for a swordfish taken from the management unit
is 29 inches (73 cm) carcass length, measured along the body contour
(i.e., a curved measurement) from the cleithrum to the anterior portion
of the caudal keel (CK measurement) or, if swordfish are weighed, 33 lb
(15 kg) dressed weight. * * *
(b) * * * A shark-bit swordfish for which the remainder of the
carcass is less than the minimum size limit specified in paragraph (a)
of this section may not be landed.
* * * * *
6. In Sec. 630.24, paragraphs (b)(1), (d)(4), and (e) are revised,
paragraph (b)(2) is redesignated as paragraph (b)(4), and new
paragraphs (b)(2) and (b)(3) are added to read as follows:
Sec. 630.24 Quotas.
* * * * *
(b) * * *
(1) The directed fishery quota for the period January 1, 1996,
through May 31, 1996, is 1,021 mt dressed weight for the longline
fishery, 22.5 mt dressed weight for the drift gillnet fishery, and 106
mt dressed weight for the bycatch fishery.
(2) The annual quota for the directed fishery for swordfish is
2,371 mt dressed weight, divided into two semiannual quotas as follows:
(i) For the semiannual period June 1 through November 30:
(A) 23.45 mt dressed weight, that may be harvested by drift
gillnet.
(B) 1,162.05 mt dressed weight that may be harvested by longline
and harpoon. To account for harvested fish that are discarded dead,
only 1064.44 mt dressed weight, may be landed in this category.
(ii) For the semiannual period December 1 through May 31:
(A) 23.45 mt dressed weight that may be harvested by drift gillnet.
(B) 1,162.05 mt dressed weight that may be harvested by longline
and harpoon. To account for harvested fish that are discarded dead,
only 1064.44 mt dressed weight may be landed in this category.
(3) Notwithstanding any other provision of this part, the sub-
quotas for the drift gillnet fishery for January 1 - November 30, 1996,
are available as follows:
(i) For the period January 1 through June 30, 22.5 mt dressed
weight; and
(ii) For the period July 1 through November 30, 23.45 mt dressed
weight.
* * * * *
(d) * * *
[[Page 27308]]
(4) Any adjustments to the 12-month directed-fishery quota will be
apportioned equally between the June 1 through November 30 and December
1 through May 31 semiannual periods.
* * * * *
(e) NMFS may adjust the December 1 through May 31 semiannual
directed-fishery quota and gear quotas to reflect actual catches during
the June 1 through November 30 semiannual period, provided that the 12-
month directed-fishery and gear quotas are not exceeded.
* * * * *
7. In Sec. 630.25, the second sentence of paragraph (b) is revised
to read as follows:
Sec. 630.25 Closures and bycatch limits.
* * * * *
(b) * * * The procedures of paragraph (a)(1) of this section
notwithstanding, during the June 1 through November 30 semiannual
period, swordfish not exceeding 21,500 lb (9,752 kg), dressed weight,
may be set aside for the harpoon segment of the fishery. * * *
* * * * *
[FR Doc. 96-13690 Filed 5-28-96; 4:25 pm]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 96-13683 Prevailing Rate Systems; Abolishment of Merced, CA, Nonappropriated Fund Wage Area
[Federal Register Volume 61, Number 106 (Friday, May 31, 1996)]
[Rules and Regulations]
[Page 27243]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13683]
========================================================================
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. 61, No. 106 / Friday, May 31, 1996 / Rules
and Regulations
[[Page 27243]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 532
RIN 3206-AH30
Prevailing Rate Systems; Abolishment of Merced, CA,
Nonappropriated Fund Wage Area
AGENCY: Office of Personnel Management.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management is issuing a final rule to
abolish the Merced, CA, nonappropriated fund (NAF) Federal Wage System
(FWS) wage area and redefine the county having continuing FWS
employment (Fresno) as an area of application to the Kern, CA, NAF wage
area for pay-setting purposes. The remaining Merced wage area county
(Merced) has no FWS employment and is being deleted.
EFFECTIVE DATE: July 1, 1996.
FOR FURTHER INFORMATION CONTACT: Paul Shields, (202) 606-2848.
SUPPLEMENTARY INFORMATION: On February 15, 1996, the Office of
Personnel Management (OPM) published an interim rule to abolish the
Merced, CA, nonappropriated fund (NAF) Federal Wage System (FWS) wage
area and redefine the county having continuing FWS employment (Fresno
County) as an area of application to the Kern, CA, NAF wage area for
pay-setting purposes. The remaining Merced wage area county (Merced) is
being deleted because is has no FWS employment. The interim rule
provided a 30-day period for public comment. OPM received no comments
during the comment period. Therefore, the interim rule is being adopted
as a final rule.
Regulatory Flexibility Act
I certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
will affect only Federal agencies and employees.
List of Subjects in 5 CFR Part 532
Administrative practice and procedure, Freedom of information,
Government employees, Reporting and recordkeeping requirements, Wages.
Accordingly, under the authority of 5 U.S.C. 5343, the interim rule
amending 5 CFR part 532 published on February 15, 1996 (61 FR 5921), is
adopted as final without any changes.
Office of Personnel Management.
Lorraine A. Green,
Deputy Director,
[FR Doc. 96-13683 Filed 5-30-96; 8:45 am]
BILLING CODE 6325-01-M
Complete official Federal Register PDF
FR Doc. 96-13682 Allowances and Differentials; Separate Maintenance Allowance for Duty at Johnston Island
[Federal Register Volume 61, Number 106 (Friday, May 31, 1996)]
[Rules and Regulations]
[Pages 27243-27244]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13682]
-----------------------------------------------------------------------
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 591
RIN 3206-AH17
Allowances and Differentials; Separate Maintenance Allowance for
Duty at Johnston Island
AGENCY: Office of Personnel Management.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations to change the method for setting separate maintenance
allowance (SMA) rates for duty at Johnston Island. Under this method,
SMA rates for Johnston Island are set at the same amount and adjusted
at the same time as SMA rates established by the Department of State
for employees who receive SMA's in foreign areas.
EFFECTIVE DATE: July 1, 1996.
FOR FURTHER INFORMATION CONTACT:
Roger M. Knadle, (202) 606-2858, or FAX: (202) 606-0824.
SUPPLEMENTARY INFORMATION: On October 17, 1995, the Office of Personnel
Management published proposed regulations (60 FR 53716) to set and
adjust the SMA rates for Johnston Island (a non-foreign area) at the
same time and in the same manner as SMA rates for employees in foreign
areas. The 60-day public comment period ended on December 18, 1995. We
received one comment from one agency supporting the regulations as
proposed. Therefore, OPM is issuing final regulations that are the same
as the proposed regulations.
An SMA is paid to employees assigned to Johnston Island to help
meet the additional expense of maintaining family members elsewhere who
would normally reside with the employee. Johnston Island is a
possession of the United States in the Pacific Ocean and is a non-
foreign post of duty. Much of the island is devoted to chemical weapon
storage and disposal facilities. Because of hazardous conditions (toxic
waste) and the lack of facilities, family members are not allowed on
the island.
Civilian employees assigned to foreign areas who are precluded from
establishing a residence because of local living conditions or Federal
policy are authorized an SMA established by the Department of State
that is periodically updated based on the Consumer Price Index (CPI)
and budgetary considerations. The final regulations abolish the current
SMA rates established by OPM regulations and provide that SMA rates for
Johnston Island will be set and adjusted at the same time and in the
same amount as SMA rates established by the Standardized Regulations
(Government Civilians, Foreign Areas) of the Department of State for
employees in foreign areas. This maintains equity between civilian
employees assigned to foreign and non-foreign areas. The final
regulations apply only to Federal civilian employees assigned to
Johnston Island.
The SMA rates will be adjusted on the first day of the first pay
period beginning on or after the effective date of these regulations.
Subsequently, the SMA rates will be adjusted on the first day of the
first pay period beginning on or after the effective date of SMA rate
adjustments under the Department of State's Standardized Regulations
(Government Civilians, Foreign Areas). This change in methodology for
setting SMA rates is not retroactive.
Regulatory Flexibility Act
I certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
will affect only Federal agencies and employees.
[[Page 27244]]
List of Subjects in 5 CFR Part 591
Government employees, Travel and transportation expenses, Wages.
Office of Personnel Management.
James B. King,
Director.
Accordingly, OPM is amending part 591 of title 5, Code of Federal
Regulations, as follows:
PART 591--ALLOWANCES AND DIFFERENTIALS
Subpart D--Separate Maintenance Allowance for Duty at Johnston
Island
1. The authority citation for subpart D of part 591 is revised to
read as follows:
Authority: 5 U.S.C. 5942a(b); E.O. 12822, 3 CFR, 1992 Comp., p.
325
2. In Sec. 591.401, paragraph (a) is revised to read as follows:
Sec. 591.401 Purpose and applicability.
(a) Purpose. This subpart prescribes the regulations required by
section 5942a of title 5, United States Code, to authorize payment of a
separate maintenance allowance to assist an employee assigned to
Johnston Island to meet the additional expenses of maintaining family
members elsewhere who would normally reside with him or her because
they cannot accompany the employee to Johnston Island. This subpart
provides rules for determining which employees are eligible to receive
the separate maintenance allowance, who qualifies as family members
under the program, the method of payment, and payment amounts.
* * * * *
3. Section 591.402 is revised to read as follows:
Sec. 591.402 Definitions.
Adult, a term used in the Department of State Standardized
Regulations (Government Civilians, Foreign Areas), means a family
member who is 21 years of age or older.
Family member means one or more of the following relatives of an
employee who would normally reside with the employee except for
circumstances warranting the granting of a separate maintenance
allowance, but who does not receive from the Government an allowance
similar to that granted to the employee and who is not deemed to be a
family member of another employee for the purpose of determining the
amount of a separate maintenance allowance or similar allowance:
(1) Children who are unmarried and under 21 years of age or,
regardless of age, are incapable of self-support, including natural
children, step and adopted children, and those under legal guardianship
or custody of the employee or the spouse when they are expected to be
under such legal guardianship or custody at least until they reach 21
years of age and when dependent upon and normally residing with the
guardian;
(2) Parents (including step and legally adoptive parents) of the
employee or of the spouse when such parents are at least 51 percent
dependent on the employee for support;
(3) Sisters and brothers (including step or adoptive sisters and
brothers) of the employee or of the spouse, when such sisters and
brothers are at least 51 percent dependent on the employee for support,
unmarried and under 21 years of age, or regardless of age, are
incapable of self-support; or
(4) Spouse, excluding a spouse independently entitled to and
receiving a similar allowance.
Johnston Island, also called Johnston Atoll, is a possession of the
United States located 717 nautical miles southwest of Honolulu, Hawaii.
Separate maintenance allowance means an allowance to assist an
employee assigned to Johnston Island who is compelled by reason of
dangerous, notably unhealthful, or excessively adverse living
conditions at Johnston Island, or for the convenience of the
Government, to meet the additional expense of maintaining family
members at a location other than Johnston Island.
4. Section 591.403 is revised to read as follows:
Sec. 591.403 Amount of payment.
(a) The annual rate of the separate maintenance allowance paid to
an employee shall be determined by the number of individuals, including
a spouse and/or one or more other family members, that are maintained
at a location other than Johnston Island.
(b) The annual rates for the separate maintenance allowance paid to
employees assigned to Johnston Island shall be the same as the annual
rates for the separate maintenance allowance established by the
Department of State in its Standardized Regulations (Government
Civilians, Foreign Areas). The annual rates shall not vary by location
of the separate household.
(c) The annual rates of the separate maintenance allowance shall be
adjusted on the first day of the first pay period beginning on or after
July 1, 1996 and, subsequently, on the first day of the first pay
period beginning on or after the effective date established for
adjustment of annual rates for the separate maintenance allowance in
the Standardized Regulations (Government Civilians, Foreign Areas).
5. Section 591.405 is revised to read as follows:
Sec. 591.405 Responsibilities of agencies.
Agencies with employees stationed at Johnston Island may require
reasonable verification of relationship and dependency.
[FR Doc. 96-13682 Filed 5-30-96; 8:45 am]
BILLING CODE 6325-01-M
Complete official Federal Register PDF
FR Doc. 96-13661 Groundfish of the Gulf of Alaska and the Bering Sea and Aleutian Islands Area; Bycatch Rate Standards for the Second Half of 1996
[Federal Register Volume 61, Number 106 (Friday, May 31, 1996)]
[Rules and Regulations]
[Pages 27312-27314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13661]
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DEPARTMENT OF COMMERCE
50 CFR Parts 672 and 675
[Docket No. 900833-1095; I.D. 052396A]
Groundfish of the Gulf of Alaska and the Bering Sea and Aleutian
Islands Area; Bycatch Rate Standards for the Second Half of 1996
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Pacific halibut and red king crab bycatch rate standards;
request for comments.
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SUMMARY: NMFS announces Pacific halibut and red king crab bycatch rate
standards for the second half of 1996. This action is necessary to
implement the bycatch rate standards for vessel operators who
participate in the Alaska groundfish trawl fisheries under the vessel
incentive program. The intent of this action is to reduce prohibited
species bycatch rates and promote conservation of groundfish and other
fishery resources.
DATES: Effective 12:01 a.m., Alaska local time (A.l.t.), July 1, 1996,
through 12 midnight, A.l.t., December 31, 1996. Comments on this action
must be received at the following address no later than 4:30 p.m.,
A.l.t., June 30, 1996.
ADDRESSES: Comments should be mailed to Ronald J. Berg, Chief,
Fisheries Management Division, NMFS, P.O. Box 21668, Juneau, AK 99802-
1668, Attn: Lori Gravel; or be delivered to 709 West 9th Street,
Federal Building, Room 401, Juneau, AK.
FOR FURTHER INFORMATION CONTACT: Susan J. Salveson, 907-586-7228.
SUPPLEMENTARY INFORMATION: The domestic groundfish fisheries in the
exclusive economic zone of the Bering Sea and Aleutian Islands
management area (BSAI) and Gulf of Alaska (GOA) are managed by NMFS
according to the Fishery Management Plan for the Groundfish Fishery of
the Bering Sea and Aleutian Islands Area and the Fishery Management
Plan for Groundfish of the Gulf of Alaska (FMPs). The FMPs were
prepared by the North Pacific Fishery Management Council (Council)
under the authority of the Magnuson Fishery Conservation and Management
Act. The FMPs are implemented by regulations for the U.S. fisheries at
50 CFR parts 672, 675, and 676. General regulations that also pertain
to the U.S. fisheries appear at 50 CFR part 620. Regulations that
establish observer coverage requirements are set out at 50 CFR part
677. Bycatch rate standards and the vessel incentive program are
described at Sec. 675.26. Halibut and red king crab bycatch rate
standards for the first half of 1996 were published in the Federal
Register on November 29, 1995 (60 FR 61213). As required by
Secs. 672.26(c) and 675.26(c), the Director of the Alaska Region, NMFS
(Regional Director), has established the bycatch rate standards for the
second half of 1996 (July 1 through December 31). These standards were
approved by the Council at its April 1996 meeting and are set out in
Table 1. The bycatch rate standards are based on the following
information:
1. Previous years' average observed bycatch rates.
2. Immediately preceding season's average observed bycatch rates.
3. The bycatch allowances and associated fishery closures specified
under Secs. 672.20(f) and 675.21.
4. Anticipated groundfish harvests.
5. Anticipated seasonal distribution of fishing effort for
groundfish.
6. Other information and criteria deemed relevant by the Regional
Director.
Table 1.--Bycatch Rate Standards by Fishery for the Second Half of 1996
for Purposes of the Vessel Incentive Program in the BSAI and GOA
------------------------------------------------------------------------
Bycatch
Fishery rate
standard
------------------------------------------------------------------------
Halibut bycatch rate standards
(kilogram of halibut/metric ton of groundfish catch)
------------------------------------------------------------------------
BSAI Midwater pollock........................................ 1.0
BSAI Bottom pollock.......................................... 5.0
[[Page 27313]]
BSAI Yellowfin sole.......................................... 5.0
BSAI Other trawl............................................. 30.0
GOA Midwater pollock......................................... 1.0
GOA Other trawl.............................................. 40.0
------------------------------------------------------------------------
Zone 1 red king crab bycatch rates standards
(number of crab/metric ton of groundfish catch)
------------------------------------------------------------------------
BSAI yellowfin sole.......................................... 2.5
BSAI Other trawl............................................. 2.5
------------------------------------------------------------------------
Bycatch Rate Standards for Pacific Halibut
The halibut bycatch rate standards for the 1996 trawl fisheries are
unchanged from those implemented in 1995. The Regional Director based
standards for the second half of 1996 on anticipated seasonal fishing
effort for groundfish species and 1993-96 halibut bycatch rates
observed in the trawl fisheries included under the incentive program.
In determining these bycatch rate standards, the Regional Director
recognized that directed fishing for BSAI Pacific cod by vessels using
trawl gear is closed until October 25, 1996 (61 FR 24730, May 16,
1996). Given the present status of halibut bycatch in the yellowfin
sole fishery, the Regional Director anticipates that this fishery will
close by early June due to halibut bycatch restrictions. The fishery
will remain closed until August 15 when the remainder of its halibut
bycatch allowance becomes available. The Regional Director also
considered the fact that August 15 is opening date of the 1996 Bering
Sea pollock `B' season (Sec. 675.23(e)) and that the Council has
requested that NMFS initiate rulemaking to delay this date until
September 1. NMFS anticipates that a proposed rule to implement a
pollock `B' season delay will be published in the Federal Register for
public review and comment by mid-June 1996.
The halibut bycatch rate standards for the BSAI yellowfin sole and
``bottom pollock'' trawl fisheries are each set at 5 kilogram (kg)
halibut/metric ton (mt) of groundfish. These standards approximate the
average annual rates observed on trawl vessels participating in these
fisheries since 1992.
The halibut bycatch rate standard for the BSAI and GOA midwater
pollock fisheries (1 kg halibut/mt of groundfish) is higher than the
bycatch rates normally experienced by vessels participating in these
fisheries. This standard is intended to encourage vessel operators to
maintain off-bottom trawl operations and limit further bycatch of
halibut in the pollock fishery when halibut bycatch restrictions at
Secs. 672.20(f) and 675.21(c)(1) prohibit directed fishing for pollock
by vessels using non-pelagic trawl gear.
A bycatch rate standard of 30 kg halibut/mt of groundfish is
established for the BSAI ``other trawl'' fishery. This standard has
remained unchanged since 1992. A bycatch rate standard of 40 kg
halibut/mt of groundfish is established for the GOA ``other trawl''
fishery, which is unchanged since 1994. The considerations that support
these bycatch rate standards for the ``other trawl'' fisheries are
unchanged from previous years and are discussed in the Federal Register
publications of 1995 bycatch rate standards (60 FR 2905, January 12,
1995, and 60 FR 27425, May 24, 1995).
Observer data collected from the 1995 GOA ``other trawl'' fishery
show average third and fourth quarter halibut bycatch rates of 18 and
48 kg halibut/mt of groundfish, respectively. The first quarter rate
from 1996 was lower, at 15 kg halibut/mt of groundfish. Observer data
from the 1995 BSAI ``other trawl'' fishery show third and fourth
quarter halibut bycatch rates of 10 and 21 kg halibut/mt of groundfish,
respectively. The first quarter rate from the 1996 BSAI ``other trawl''
fishery was 10 kg halibut/mt of groundfish.
Bycatch Rate Standards for Red King Crab
The red king crab bycatch rate standard for the yellowfin sole and
``other trawl'' fisheries in Zone 1 of the Bering Sea subarea is 2.5
crab/mt of groundfish during the second half of 1996. This standard has
remained unchanged since 1992.
The red king crab savings area (RKCSA) in Zone 1 has been closed to
fishing with trawl gear since the beginning of the 1996 trawl season
(60 FR 63451, December 11, 1995; 61 FR 8889, March 6, 1996). This
closure will remain effective through June 15, 1996. The closure of the
RKCSA has significantly reduced red king crab bycatch rates in the BSAI
trawl fisheries during the first half of 1996. Through early May, the
rock sole/flathead sole/other flatfish fishery category had taken only
9 percent of its annual red king crab bycatch allowance. The Pacific
cod and yellowfin sole fisheries had taken only 25 percent and less
than 1 percent, respectively, of their bycatch allowances. As a result,
NMFS does not anticipate that the red king bycatch allowances specified
for the 1996 trawl fisheries (61 FR 4311, February 5, 1996) will be
reached. Furthermore, bycatch rates should remain low given that
intensive flatfish or Pacific cod trawl fisheries in Zone 1 are not
anticipated for the remainder of the year. Nonetheless, as in past
years, the Regional Director is maintaining the 2.5 red king crab/mt of
groundfish bycatch rate standard to support any exploratory fishing in
Zone 1 by vessel operators attempting to avoid relatively high halibut
and C. bairdi bycatch rates typically experienced in other areas of the
BSAI.
The Regional Director has determined that the bycatch rate
standards set out in Table 1 are appropriately based on the information
and considerations necessary for such determinations under
Secs. 672.26(c) and 675.26(c). These bycatch rate standards may be
revised and published in the Federal Register when deemed appropriate
by the Regional Director, pending his consideration of the information
set forth at Secs. 672.26(c)(2)(v) and 675.26(c)(2)(v).
Classification
This action is taken under 50 CFR 672.26 and 675.26 and is exempt
from review under E.O. 12866.
[[Page 27314]]
Authority: 16 U.S.C. 1801 et seq.
Dated: May 24, 1996.
Richard W. Surdi,
Acting Director, Office of Fisheries Conservation and Management,
National Marine Fisheries Service.
[FR Doc. 96-13661 Filed 5-28-96; 4:25 pm]
BILLING CODE 3510-22-W
Complete official Federal Register PDF
FR Doc. 96-13629 Health Maintenance Organizations: Employer Contribution to HMOs
[Federal Register Volume 61, Number 106 (Friday, May 31, 1996)]
[Rules and Regulations]
[Pages 27282-27288]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13629]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Health Care Financing Administration
42 CFR Part 417
[OMC-004-F]
RIN 0938-AE64
Health Maintenance Organizations: Employer Contribution to HMOs
AGENCY: Health Care Financing Administration (HCFA), HHS.
ACTION: Final rule.
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SUMMARY: This rule amends Sec. 417.157 of the HCFA regulations, which
pertains to employer contributions to health maintenance organizations
(HMOs) that are included among the alternatives in health benefits
plans that an employer offers to its employees.
These amendments are necessary to conform that section to changes
made in section 1310(c) of the Public Health Service Act by section
7(a)(2) of the HMO Amendments of 1988.
The intent is to ensure that employees who choose the HMO
alternative are not financially disadvantaged.
DATES: Effective Date: These regulations are effective on July 1, 1996.
FOR FURTHER INFORMATION, CONTACT: Marty Abeln, (410) 786-1032.
SUPPLEMENTARY INFORMATION:
I. Background
Under section 1310 of the Public Health Service (PHS) Act, the
following rules apply:
Certain public and private employers that offer health
benefits plans to their employees must include the option of enrollment
in qualified health maintenance organizations (HMOs) if such HMOs
request inclusion and their requests meet specified conditions as to
content and timing (this is known as the ``employer mandate''
provision);
The procedures for offering the HMO option must take into
account the rules of collective bargaining; and
No employer is required to contribute more for health
benefits than would be required by any prevailing collective bargaining
agreement or any other legally enforceable contract between the
employer and the employees for health benefits.
These provisions are implemented by subpart E of part 417 of the
HCFA rules. Section 417.157 of those rules provides that--
The employer or designee must include the HMO option in
the offering on terms no less favorable, with respect
[[Page 27283]]
to the employer's monetary contribution or designee's cost than the
terms on which the other alternatives are included; and
An employer's contribution must be equal, in dollar
amount, to the largest contribution made by that employer, on behalf of
a particular employee, to a non-HMO alternative included in the plan
offering.
II. Statutory Amendment
Under amendments made to section 1310 of the Public Health Service
Act by section 7 of Public Law 100-517--
If an employer offers a health benefits plan to its
employees and includes an HMO as required by the mandate provisions
discussed above, any employer contribution under the plan must ``not
financially discriminate'' against an employee who enrolls in the HMO;
The employer's contribution does not discriminate if the
``method of determining the contribution on behalf of all employees is
reasonable and is designed to assure employees a fair choice among
health benefits plans''.
The ``employer mandate'' provision expires on October 24,
1995, and employers that voluntarily include HMOs after that date must
meet the nondiscrimination standard for their contributions.
The legislative history of this provision makes clear that, while
the Congress agreed that our current ``dollar for dollar'' test was
consistent with previous law, the Congress now intends to give
employers greater flexibility.
The committee reports accompanying Public Law 100-517 provided
examples of some methods of contribution that would meet the
legislative requirement. (See, for example, the report of the Senate
Committee on Labor and Human Resource, Sen. Rep. No 304, 100th Cong.,
2nd Sess., 9-11 (1988).) We incorporated those examples in the proposed
rule at Sec. 417.157(a)(4). We indicated that, if an employer followed
one of those methods, we would not consider the contributions to be
financially discriminatory.
Method 1: The employer may contribute to the HMO the same amount it
contributes to the non-HMO alternative. For example, an employer that
contributes $80 per month on behalf of each employee who joins an
indemnity plan and pays the same amount on behalf of each employee who
joins the HMO would not be discriminating.
Method 2: An employer's contributions may vary for different
classes of enrollees established on the basis of attributes, such as
age, sex, or family status, that are reasonable predictors of
utilization, experience, costs, or risk. For each enrollee in a given
class, the employer would contribute an equal dollar amount, regardless
of the plan that an employee chooses. To illustrate, one such class
might be single males under the age of 30. If the employer's cost for
the class of single males under age 30 in an indemnity or self-
insurance plan is $60, and the employer's contribution for HMO
enrollment for each employee in that particular class were $60, there
would be no discrimination. The employer would follow this methodology
for each of the other classes. By calculating the contribution for HMO
enrollment for each class in this way, the employer would determine its
total payment on behalf of all employees enrolling in the HMO.
Method 3: If the employer's policy is that all employees contribute
to their health benefits plan, an employer may require employees to
make a reasonable minimum contribution to an HMO. We would consider an
employee contribution that did not exceed 50 percent of the employee
contribution to the principal non-HMO alternative to be reasonable in
such a situation. To illustrate, assume that the HMO's premium is $80,
the alternative plan's premium is $100, and the employer contributes
$80 on behalf of each employee who participates in the alternative
plan. In such a case, employees who join the HMO would have no out-of-
pocket costs while employees who remain with the alternative plan would
contribute $20. If the employer had a policy requiring a minimum
employee contribution for health benefits, we would consider it
reasonable for the employer to require employees who enroll in the
lower cost plan, in this example the HMO, to pay an amount not in
excess of $10, which is 50 percent of the employee contribution to the
non-HMO alternative.
Method 4: An employer's contribution may be the same percentage of
the premium of each alternative the employer offers. For example, if
the employer pays 90 percent of the premium of each non-HMO alternative
offered, we would find no discrimination if the employer pays 90
percent of the HMO premium.
Method 5: Employers and HMOs may negotiate contribution
arrangements that are mutually acceptable. In negotiating those
arrangements with a Federally qualified HMO, an employer may not insist
on terms that would cause the HMO to violate any of the requirements
for being a qualified HMO, as set forth in subparts B and C of part 417
of the HCFA rules. Any negotiated arrangements must meet the basic
criteria for nondiscrimination against employees who enroll in HMOs.
Although the major thrust of the statutory amendment is to provide
greater flexibility to the employer while ensuring fair choice for
employees, two of the committee reports (discussed below in the
response to comment #6) specify that HMOs are also protected from
``discriminatory and unfair contribution practices''.
III. Proposed Rule
On July 5, 1991, at 56 FR 30723, we published a proposed rule that
would amend Sec. 417.157 to implement the statutory change discussed
above, primarily by incorporating the examples.
Also included were proposed minor amendments to those portions of
Sec. 417.107 that pertained to quality assurance and to certification
of institutional providers, and the removal of an outdated requirement.
No comments were received on this part of the NPRM. While this final
rule was under development, the document identified as OCC-015-FC
(published on July 15, 1993 at 58 FR 38062) made the proposed changes.
It removed obsolete paragraph (f), redesignated paragraph (h) as
paragraph (a) of Sec. 417.106, and redesignated paragraph (i) as
paragraph (h) of Sec. 417.124.
IV. Discussion of Comments on the Proposed Rule
We received seven letters of comment; three from HMOs, two from
industry associations, and one each from a law firm and a consultant.
Their comments and our responses to them are discussed under several
subject areas.
A. ``Contribution by Class'' Method
This is the second of the five examples listed in the proposed
rule. Under this method, employers may contribute different amounts for
different classes of employees classes based on factors such as age,
sex, and family status.
1. Comment: One commenter noted that this appeared to allow
differential employer contributions for male and female employees which
would presumably result in different out-of-pocket costs for male and
female employees. The commenter thought this would be illegal
discrimination as it would violate title VII of the 1964 Civil Rights
Act. In addition, the commenter questioned whether an age-based
classification would violate HCFA regulations that require that
employees
[[Page 27284]]
and spouses over age 65 be provided health coverage on the same terms
as coverage for younger employees.
1. Response: This comment has brought to our attention that
``Method 2'', which was taken directly from the legislative history, is
misleading. First, the example assumes that the employer would have
differential costs by age and sex in its contributions towards
indemnity plans, which would be reflected in its payment to HMOs.
However, we understand that health insurers that contract with employer
groups do not vary rates between men and women, or according to age,
but rather develop composite rates similar to the HMO community rates,
i.e.,distinguishing only between individuals and families. This, as a
practical matter, makes the example in ``Method 2'' inaccurate. We are
revising the regulation text accordingly.
However, we note that gender-based distinctions under an employee
benefit plan would likely violate title VII of the Civil Rights Act of
1964, as interpreted by the Supreme Court. That statute is under the
jurisdiction of the Equal Employment Opportunity Commission (EEOC), and
beyond the scope of this regulation. Any questions as to whether a
particular fact situation would or would not violate title VII should
be directed to the EEOC.
We also note that the HCFA regulations cited by the commenter do
not impose a general prohibition against age-based distinctions, but
apply only to distinctions based on attainment of age 65. This
implements explicit statutory language.
2. Comment: Two commenters were concerned that some employers may
wish to use prior year data on attributes that may not be reasonable
predictors of utilization, experience, costs, or risk. In order to
prevent confusion on this issue, one commenter proposed adding the word
``demographic'' to the example, to read:
An employer's contributions may reflect the demographic
composition of enrollees according to attributes such as age, sex
and family status* * *
2. Response: We do not believe that the Congress intended to limit
to ``demographic factors'' the ``attributes'' employers may use in
determining their contribution amount. The supporting committee reports
suggest a broader concern: that employers be able to determine their
contribution using a method that reflects the HMO's actual costs, so
that the employers realize cost savings if their employees use fewer or
less costly services. We believe that the critical language is the
requirement that the attributes must be such as can reasonably be
expected to predict utilization, experience, costs, and risks. Age,
sex, and family status are given only as examples. In summary, if an
employer can establish that a nondemographic attribute can reasonably
be considered a predictor of those factors, it is acceptable. On the
other hand, if an HMO can show that a particular health status factor
cannot reasonably be considered to be a predictor, it is not
acceptable. We do not believe it is necessary or appropriate for the
regulations to elaborate further on the standard.
3. Comment: One commenter had additional questions about the
application of nondemographic factors. He expressed concern about the
validity and potential for abuse of employers' revising their HMO
contribution amount on the basis of studies of health costs incurred by
persons who switched from the employer's self-insured plan to an HMO,
or on national data showing that HMOs receive favorable selection.
The commenter requested that HCFA provide more information about
how prior use data may appropriately be used to predict future health
care costs and thus be a legitimate factor in developing employer
contributions by class. The commenter concluded by proposing that
HCFA--
a. Establish guidelines as to the circumstances under which
employers may make contribution decisions using data on prior
utilization of employees who switch to an HMO, and require
justification for such use;
b. Require employers to obtain prior HCFA approval for any method
not allowed under the guidelines; and
c. Specify the minimum number of employees for whom data must be
obtained, for the data to be considered statistically valid.
3. Response: As previously discussed, under the contribution by
class method, any employee attribute used in an employer's contribution
methodology must be one that can reasonably be expected to predict the
health care utilization, experience, costs, or risk of those employees
who are enrolling in the HMO. Health status attributes such as previous
health care utilization and costs are generally accepted as predictors
of future health care costs and are acceptable for employers to use in
determining their contribution to an HMO.
The legislation requires that the employer's method for calculating
the contribution be ``reasonable'' and ensure employees a ``fair
choice'' among the plans offered. We believe that in order to meet the
standard of being reasonable and ensuring employees a fair choice, the
method of determining the employer's contribution must reflect a
reasonable estimate of the cost of providing health care services for
the actual enrollees of a particular HMO.
We also believe that the intent of the legislation is to provide
employers with flexibility in determining their contribution
methodology, as long as it meets the ``reasonable'' and ``fair choice''
standards. Therefore, we will not specify a minimum number of employees
to be used in the calculations. Although we do not require prior
approval, we do require the employer to make available to HCFA, upon
request, information on how it calculates its contribution. If the HMO
or the employees believe that the contribution does not meet the
``reasonable'' and ``fair choice'' standards, they may request that
HCFA review the methodology.
4. Comment: Two commenters requested that HCFA provide guidance on
possible exceptions to the principle that the ``contribution by class''
method should reflect the actual enrollment of each HMO.
The first commenter noted that it is not unusual for an employer to
offer one or more indemnity plans and several HMOs to achieve HMO
coverage over a broad enough area or for other reasons. In such cases,
the commenter noted, it would be desirable for the employer to
establish a single HMO contribution rate, even though the different
HMOs may in fact charge different rates. To avoid compelling the
employer to find a separate contribution for each HMO, the final
regulations should treat the HMO contribution as acceptable if it meets
the required standard with respect to any of the HMOs or with respect
to the average of the HMO charges.
The second commenter was concerned that an employer might take the
demographic data from all the HMOs it offered and come up with a single
``composite'' contribution amount for all of them. This commenter
believed that a single ``composite'' contribution should not be allowed
because the employer had not developed it on the basis of the expected
demographic characteristics of the mandating HMO. The commenter noted
that if the employer combines the demographic data of the mandating HMO
with the data of another HMO or other health benefits plans it offers
its employees, the employer would not be making an equal dollar
contribution for each employee in a particular class.
4. Response: The basic rule is that the methodology must be
reasonable and
[[Page 27285]]
must offer employees a fair choice among health benefit plans. As noted
above, we take the position that it must reflect the actual attributes
of each HMO's enrollment. It seems unlikely, for example, that an
employer with employees in widely dispersed geographic areas, or in
rural as well as urban areas could establish a ``composite''
contribution that would meet the standard. However, if an employer can
show that in its particular situation, a composite amount would meet
the standard, it could be acceptable. For example, all of the HMOs
might be shown to serve the same general geographic area and attract
the same type of enrollee. Absent such a showing, it would not be
sufficient to meet the standard for a single HMO without considering
the others.
We note that the second commenter objected to a composite
contribution amount on the grounds that the employer would not be
making an equal dollar contribution for all members of a particular
class. Although the ``contribution by class'' method requires equal
dollar amounts within each class, there could be other similar
approaches that do not use equal dollar amounts but still meet the
standard of reasonableness and fair choice.
B. Minimum Employee Contribution Method
5. Comment: One commenter suggested that example (iii), which
states that the employer may require employees to contribute to the HMO
an amount that does not exceed 50 percent of the employee contribution
to the principal non-HMO alternative, include two additional
limitations:
a. The minimum contribution requirement can be invoked only if an
employee would otherwise have to pay little or nothing for the HMO
plan.
b. The employee contribution may not exceed $20 per month.
5. Response: We agree with the commenter that the ``minimum
employee contribution'' approach can be used only if the HMO coverage
would otherwise be available at nominal or no cost. This is
specifically stated in the legislative history and was implicit in the
proposed rule. We are making it explicit in the final rule. However, we
will not establish a $20 maximum because the Congress, in stating that
it would be reasonable to set the limit for the required contribution
at 50 percent of the contribution to the non-HMO alternative,
established that amount as the maximum.
C. Miscellaneous Aspects
6. Comment: One commenter was concerned that the intent of the
Congress that contribution arrangements not discriminate against the
HMO is not evident in the regulation. The committee report language is
essential to an understanding of the legislative intent. There should
be a statement in the final regulation or preamble to the effect that
it is not the intent of the law to allow practices that would be unfair
or discriminatory to the HMO, and that such practices will not be
permitted.
The commenter also suggested that the purpose of the HMO provisions
and the examples set forth in the committee reports could provide a
basis for HCFA to establish strict criteria for evaluating any method
that results in the employer's paying less on behalf of an employee who
enrolls in an HMO than on behalf of an employee who enrolls in a non-
HMO alternative. The commenter urged that exceptions be narrowly
construed and allowed only for compelling reasons. Otherwise, the
underlying purpose for enactment of section 1310 of the PHS Act would
be circumvented. The commenter recommended that we adopt the following
factors as the basis for determining whether an employer contribution
is reasonable and offers a fair choice:
The method proposed by the employer must be consistent
with the purposes of encouraging the effective and efficient delivery
of health care services and reducing health care costs.
Financial discrimination against employees who enroll in
an HMO must be minimal and only to the extent necessary to accomplish
the purposes.
Another commenter asked if a contribution method in which the
employer contributed the difference between the employee contribution
and the health plans' premiums resulting in employees having an equal
expense whether they choose an HMO or a more expensive indemnity plan,
would be prohibited by these proposed rules. The commenter stated that
such a practice clearly discriminates in favor of the more expensive
plan (typically a non-HMO plan) and thus unfairly discriminates against
employees and the HMO.
6. Response: With respect to the first comment, section 1310(c) of
the PHS Act does not mention discrimination against the HMO. The
employer contribution is acceptable if it ``is reasonable and is
designed to assure employees a fair choice among health benefits
plans''. The legislative history cited by the commenter states that the
new standard ``enhances employers' flexibility in determining their
contributions to HMOs while protecting employees and HMOs from
discriminatory and unfair contribution practices.'' (Sen. Rep. No. 100-
304, H.R. Rep. No. 100-417) However, the fact that the statute does not
contain the reference to the HMO indicates that this statement
supports, at most, a balance of the interests of the three parties,
with primary weight given to the employer and employee interests.
With respect to the suggestion that the HMO contribution cannot be
less than the non-HMO contribution, unless it is shown to ``encourage
effective and efficient delivery of health care'', we note that the
legislative history clearly states that a dollar-for-dollar match is no
longer required. Moreover, two of the examples provided in the
legislative history assume that there will be an unequal contribution,
and that it will be to the HMO's disadvantage. First, an employer can
require employees to pay for their HMO coverage even if the methodology
would otherwise result in no cost to the employees.
Similarly, the employer is permitted to contribute equal
percentages of the cost for the HMO and non-HMO options. Under this
method, an employer can contribute far more, in terms of dollars, for
the non-HMO option than for the HMO option. For example, if the HMO
costs $100 per month, and the indemnity plan costs $300, and the
employer pays 90 percent of the cost, it will pay $90 for an employee
who chooses an HMO, and $270 for an employee who chooses the indemnity
plan. (For the employee, the difference between the two options is only
$20.)
Therefore, we see no justification for imposing a stricter standard
simply because the employer pays less for the HMO than the non-HMO
option. In addition, the commenter's proposed ``efficiency and cost
effectiveness'' standard is neither required by the statutory amendment
nor, arguably, supported by its legislative history. The latter states
only that section 1310 was designed to give employees an opportunity to
choose an HMO alternative. It does not mention efficiency and cost
effectiveness.
Finally, with respect to determinations that result in equal
employee contributions for all alternatives, we believe that this
approach is clearly one way to provide a ``fair choice'' to employees.
Under this approach, employees can choose the health plan that best
serves their needs. The commenter's primary concern seems to be that
this approach is unfair
[[Page 27286]]
to employees if they cannot ``share in the savings'' of choosing an
HMO. We note, first, that ``fairness'' is a subjective standard. As
long as an approach can reasonably be viewed as fair, it satisfies the
standard. That judgment is not invalidated simply because there may be
a basis for characterizing it as unfair.
We note further that the legislative history makes clear that the
amendment was, to a large extent, prompted by a concern that the HMOs
were engaging in ``shadow pricing''. Under shadow pricing, the HMOs
would charge the same premium as more expensive non-HMO alternatives
instead of passing the savings along to either the employer or the
employee. Therefore, the argument that equal employee contributions are
unfair because employees cannot ``share in the savings'' (from choosing
a lower cost HMO) is not compelling.
7. Comment: One commenter noted that Sec. 417.157(a)(2) lists five
contribution methods as acceptable, but there are no examples of
unacceptable methods. Several commenters asked for more guidance to
assist them in determining what would be acceptable.
Another commenter strongly suggested that the proposed rules be
amended to provide examples of types of arrangements that would be
considered to be discriminatory, and therefore prohibited, by these
regulations.
7. Response: The employer contribution requirements provide
employers enhanced flexibility in determining their contributions to
HMOs and other health benefits plans they offer. The limits on that
flexibility are established by the statutory language which requires
that the method of determining the contribution be reasonable and not
discriminate financially against employees who choose to join an HMO.
In part, this new flexibility is recognition that HMOs need less
regulatory protection because in recent years they have become more
accepted by both employers and employees and are generally better able
to compete with other health benefits plans.
As previously stated, if the HMO or the employees believe that the
employer's contribution does not meet the ``reasonable'' and ``fair
choice'' standards, they may request that HCFA review the methodology.
Generally, HCFA will not undertake a review if the employer has
followed one of the examples given in the regulation.
If the employer uses a methodology other than one of those
examples, HCFA generally will not review unless the methodology results
in significantly higher costs for employees who select the HMO
alternative. If it undertakes review, HCFA will consider whether the
employer's methodology is based on factors that are reasonable and are
applied fairly. For example, if the HMO has a more comprehensive
benefits package than the principle indemnity plan, that could be a
reasonable factor justifying a higher cost for employees who enroll in
the HMO.
We will not attempt to define all possible reasonable explanations
that would justify a larger contribution from HMO enrollees. We note
however, that the rationale must apply to the actual employees of the
particular HMOs.
8. Comment: One of the commenters, while agreeing that employers
can now make unequal contributions, stated that the right to make
unequal contributions should require substantial justification, be
narrowly construed, and allowed only for compelling reasons.
8. Response: We believe such stringent requirements are not in
keeping with the flexibility the Congress intended employers to have.
As noted below under Changes in the Regulations, the final rule
requires the employer to make available to HCFA, upon request, a
description of the methodology it used to determine its contributions,
and related data on the eligible employee population. HCFA may request
the data on its own initiative or because an HMO or employee requests
HCFA to review the methodology.
A contribution methodology that results in different contributions
to different plans in order to ensure that employees have the same out-
of-pocket costs, no matter which plan they choose, is consistent with
the standards and would, therefore, be acceptable.
9. Comment: One commenter suggested that any method that does not
fall into one of the first four examples provided in the regulation
should be required to fall into the fifth example--the method must be
mutually acceptable to both the employer and the HMO.
9. Response: The five examples of acceptable contribution methods
listed under Sec. 417.157(a)(2) are not meant to be exclusive. We note
that the intent of the legislation is to allow employers increased
flexibility in determining their contribution payment amounts.
Accordingly, we will not restrict feasible contribution methodologies
beyond the requirements already described.
10. Comment: One commenter noted that the last of the five examples
under Sec. 417.157(a)(2) allows for employers and HMOs to negotiate
contribution arrangements that are mutually acceptable. The commenter
goes on to ask if such mutually-agreed-upon arrangements must also meet
the statutory standards of the proposed employer contribution
regulation.
10. Response: Contribution levels that are mutually agreed upon by
the employer and the HMO must also meet the standards established by
this regulation.
V. Changes in the Regulations
A. Changes Required by the Expiration of the ``Employer Mandate''
Provisions Effective October 24, 1995
In Sec. 417.151, we have revised paragraphs (a) and (e) to make
clear that, effective October 24, 1995, inclusion of the HMO
alternative in an employer's health benefits plan became optional.
We have removed Secs. 417.152 and 417.154 because they would no
longer be applicable.
In Sec. 417.153, we have revised paragraph (a) to make paragraphs
(b) and (c) applicable when an employing entity voluntarily includes
one or more HMOs in its health plan offerings.
We have revised Sec. 417.159 to make clear that inclusion of HMOs
is at the employing entity's option.
B. Changes to Implement Statutory Amendments That Were Effective Upon
Enactment.
In Sec. 417.157, we have--
Revised paragraphs (a)(1) and (a)(2) to eliminate the
``equal contribution'' requirement and to incorporate the criteria
specified in the statute;
Revised paragraph (a)(3) to remove the requirement for
increased contribution to the HMO and to give examples of contributions
that would be considered nondiscriminatory;
Added a paragraph (a)(4) ``Adjustment of employer
contribution'' to make clear that what appeared in the proposed rule as
a third ``method'' is rather a general rule applicable, under specified
circumstances, to a contribution determined by any acceptable method.
Adjustment is permitted only when HMO enrollees would, otherwise, have
to pay little or nothing at all because the HMO premium is lower than
the premiums of other plans offered. The payment by the enrollee could
not exceed 50 percent of the payment for the principal non-HMO
alternative, that is, the alternative that covers the largest number of
the employer's employees.
Removed paragraphs (f) and (g) as inconsistent with the
revised policy; and
In response to certain comments, revised the content of
paragraph (h) and redesignated it under new paragraphs (f) and (g).
[[Page 27287]]
VI. Regulatory Impact Statement
Consistent with the Regulatory Flexibility Act (RFA) and section
1102(b) of the Social Security Act, we prepare a regulatory flexibility
analysis for each rule, unless the Secretary certifies that the
particular rule will not have a significant economic impact on a
substantial number of small entities, or a significant impact on the
operations of a substantial number of small rural hospitals.
The RFA defines ``small entity'' as a small business, a nonprofit
enterprise, or a governmental jurisdiction (such as a county, city, or
township) with a population of less than 50,000. We also consider all
HMOs to be small entities. For purposes of section 1102(b) of the Act,
we define ``small rural hospital'' as a hospital that has fewer than 50
beds and is located anywhere but in a metropolitan statistical area.
For reasons noted below, we believe that any economic impact of the
statutory provisions on which this rule is based will be small and
transitory.
Effective as of October 24, 1995, inclusion of HMOs in employer
health plan offerings became voluntary.
Employers that do include HMOs are no longer held to the previous
``dollar for dollar'' rule. An employer could, for example, base its
contribution to an HMO on a reasonable estimate of what it will cost to
provide care for its employees, and thus share in the savings resulting
from efficient delivery of health care by the HMO.
However, the employer's contribution must meet new standards, that
is, it must be an amount that is ``reasonable'' and that ensures
employees a ``fair choice'' among health plan alternatives offered.
This balanced approach means that, while employers benefit from greater
flexibility, employees--and the HMOs they are free to join, are
protected against discrimination.
We have not prepared a regulatory flexibility analysis because we
have determined, and the Secretary certifies, that these rules will not
have a significant economic impact on a substantial number of small
entities or a significant impact on the operation of a substantial
number of small rural hospitals.
In accordance with Executive Order 12866, this rule was reviewed by
the Office of Management and Budget.
VII. Collection of Information Requirements
This rule contains new information collections that are subject to
review by the Office of Management (OMB) under the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 through 3511). The title and description of
the information collection and the description of respondents are shown
below with an estimate of the annual reporting and recordkeeping
burden.
Sec. 417.157(f): Retention and availability of data, is revised to
specify that each employing entity or designee must retain the plan
data for three years and make it available to HCFA upon request. The
data must be that used to compute the level of contribution for each of
the plans offered to employees, a description of the methodology for
computing the level of contribution, and any related data about the
employees who are eligible to enroll in a plan.
Sec. 417.157(g): HCFA review of data, is revised to make clear that
HCFA may request and review the data specified in paragraph (f) of this
section on its own initiative or in response to requests from HMOs or
employees. The purpose of HCFA's review is to determine whether the
methodology and the level of contribution comply with the requirements
of this subpart. HMOs and employees that request HCFA to review the
plan data must set forth reasonable grounds for making the request.
The respondents affected by section 417.157, paragraphs (f) and (g)
are public and private employers and employees.
The burden under paragraphs (f) and (g) of section 417.157 is
estimated at 8 to 10 hours per employer for compiling the data, usually
once a year, and making it available to HCFA when requested.
The agency has submitted a copy of this rule to OMB for its review
of these information collections. When OMB approves these provisions,
we will publish a notice in the Federal Register to that effect.
We invite comments regarding this burden estimate or any other
aspect of these collections of information, including any of the
following:
Whether the information collection is necessary and useful
for carrying out the proper functions of the agency;
the accuracy of the estimated burden;
ways to enhance the quality, clarity, and usefulness of
the information to be collected; and,
recommendations for using automated collection techniques
or other forms of information technology to minimize the information
collection burden.
Please send any comments to HCFA, OFHR, MPAS, C2-26-17, 7500
Security Boulevard, Baltimore, Maryland 21244-1850.
List of Subjects in 42 CFR Part 417
Administrative practice and procedure, Grant programs-health,
Health care, Health facilities, Health insurance, Health maintenance
organizations (HMO), Loan programs-health, Medicare, Reporting and
recordkeeping requirements.
42 CFR Part 417 is amended as set forth below:
1. The authority citation for part 417 continues to read as
follows:
Authority: Secs. 1102 and 1871 of the Social Security Act (42
U.S.C. 1302 and 1395hh); secs. 1301, 1306, and 1310 of the Public
Health Services Act (42 U.S.C. 300e, 300e-5, and 300e-9); and 31
U.S.C. 9701.
2. Sec. 417.151 is amended to revise paragraphs (a) and (e) to read
as follows:
Sec. 417.151 Applicability.
(a) Basic rule. Effective October 24, 1995 1, this subpart
applies to any employing entity that offers a health benefits plan to
its employees, meets the conditions specified in paragraphs (b) through
(e) of this section, and elects to include one or more qualified HMOs
in the health plan alternatives it offers its employees.
---------------------------------------------------------------------------
\1\ Before October 24, 1995, an employing entity that met the
conditions specified in Sec. 417.151 was required to include one or
more qualified HMOs, if it received from at least one qualified HMO
a written request for inclusion and that request met the timing,
content, and procedural requirements specified in Sec. 417.152.
---------------------------------------------------------------------------
* * * * *
(e) Employees in HMO's service area. At least 25 of the employing
entity's employees reside within the HMO's service area.
Sec. 417.152 [Removed]
3. Section 417.152 is removed.
4. Section 417.153 is amended to revise the heading and paragraph
(a) to read as follows:
Sec. 417.153 Offer of HMO alternative.
(a) Basic rule. An employing entity that is subject to this subpart
and that elects to include one or more qualified HMOs must offer the
HMO alternative in accordance with this section.
* * * * *
Sec. 417.154 [Removed]
5. Section 417.154 is removed.
6. Section 417.157 is revised to read as follows:
Sec. 417.157 Contributions for the HMO alternative.
(a) General principles--(1) Nondiscrimination. The employer
contribution to an HMO must be in an amount that does not discriminate
financially against an employee who
[[Page 27288]]
enrolls in an HMO. A contribution does not discriminate financially if
the method of determining the contribution is reasonable and is
designed to ensure that employees have a fair choice among health
benefits plan alternatives.
(2) Effect of agreements or contracts. The employing entity or
designee is not required to pay more for health benefits as a result of
offering the HMO alternative than it would otherwise be required to pay
under a collective bargaining agreement or contract that provides for
health benefits and is in effect at the time the HMO alternative is
included.
(3) Examples of acceptable employer contributions. The following
are methods that are considered nondiscriminatory:
(i) The employer contribution to the HMO is the same, per employee,
as the contribution to non-HMO alternatives.
(ii) The employer contribution reflects the composition of the
HMO's enrollment in terms of enrollee attributes that can reasonably be
used to predict utilization, experience, costs, or risk. For each
enrollee in a given class established on the basis of those attributes,
the employer contributes an equal amount, regardless of the health
benefits plan chosen by the employee.
(iii) The employer contribution is a fixed percentage of the
premium for each of the alternatives offered.
(iv) The employer contribution is determined under a mutually
acceptable arrangement negotiated by the HMO and the employer. In
negotiating the arrangement, the employer may not insist on terms that
would cause the HMO to violate any of the requirements of this part.
(4) Adjustment of employer contribution. An employer contribution
determined by an acceptable method may in some cases be adjusted if it
would result in a nominal payment or no payment at all by HMO enrollees
(because the HMO premium is lower than the premiums for the other
alternatives offered). If, for example the employer has a policy of
requiring all employees to contribute to their health benefits plan,
the employer may require HMO enrollees who would otherwise pay little
or nothing at all, to make a payment that does not exceed 50 percent of
the employee contribution to the principal non-HMO alternative. The
principal non-HMO alternative is the one that covers the largest number
of enrollees from the particular employer.
(b) Administrative expenses. (1) In determining the amount of its
contribution to the HMO, the employing entity or designee may not
consider administrative expenses incurred in connection with offering
any alternative in the health benefits plan.
(2) However, if the employing entity or designee has special
requirements for other than standard solicitation brochures and
enrollment literature, it must, in the case of the HMO alternative,
determine and distribute any administrative costs attributable to those
requirements in a manner consistent with its method of determining and
distributing those costs for the non-HMO alternatives.
(c) Exclusion for contribution for certain benefits. In determining
the amount of the employing entity's contribution or the designee's
cost for the HMO alternative, the employing entity or designee may
exclude those portions of the contribution allocable to benefits (such
as life insurance or insurance for supplemental health benefits)--
(1) For which eligible employees and their eligible dependents are
covered notwithstanding selection of the HMO alternative; and
(2) That are not offered on a prepayment basis by the HMO to the
employing entity's employees.
(d) Contributions determined by agreements or contracts or by law.
If the specific amount of the employing entity's contribution for
health benefits is fixed by an agreement or contract, or by law, that
amount constitutes the employing entity's obligation for contribution
toward the HMO premiums.
(e) Allocation of portion of a contribution determined by an
agreement. In some cases, the employing entity's contribution for
health benefits is determined by an agreement that also provides for
benefits other than health benefits. In that case, the employing entity
must determine, or instruct its designee to determine, what portion of
its contribution is applicable to health benefits.
(f) Retention and availability of data. Each employing entity or
designee must retain the following data for three years and make it
available to HCFA upon request:
(1) The data used to compute the level of contribution for each of
the plans offered to employees.
(2) Related data about the employees who are eligible to enroll in
a plan.
(3) A description of the methodology for computation.
(g) HCFA review of data. (1) HCFA may request and review the data
specified in paragraph (f) of this section on its own initiative or in
response to requests from HMOs or employees.
(2) The purpose of HCFA's review is to determine whether the
methodology and the level of contribution comply with the requirements
of this subpart.
(3) HMOs and employees that request HCFA to review must set forth
reasonable grounds for making the request.
7. In Sec. 417.155(d)(2) introductory text, ``which'' is removed
and ``that'' is added in its place.
8. In Sec. 417.159, ``The obligation'' is revised to read ``The
decision'', and ``HMO option'' is revised to read ``HMO alternative''.
9. In the heading of Sec. 417.164, ``qualifiers'' is removed and
``qualification'' is added in its place.
10. In Sec. 417.166(a)(1), ``change'' is removed and ``changed'' is
added in its place.
(Catalog of Federal Domestic Assistance Program No. 93.773,
Medicare--Hospital Insurance; and Program No. 93.774, Medicare--
Supplementary Medical Insurance Program)
Dated: August 14, 1995.
Bruce C. Vladeck,
Administrator, Health Care Financing Administration.
Dated: December 5, 1995.
Donna E. Shalala,
Secretary.
[FR Doc. 96-13629 Filed 5-30-96; 8:45 am]
BILLING CODE 4120-01-P
Complete official Federal Register PDF
FR Doc. 96-13626 Royalty Relief for Producing Leases and Certain Existing Leases in Deep Water
[Federal Register Volume 61, Number 106 (Friday, May 31, 1996)]
[Rules and Regulations]
[Pages 27263-27280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13626]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Minerals Management Service
30 CFR Part 203
RIN 1010-AC13
Royalty Relief for Producing Leases and Certain Existing Leases
in Deep Water
AGENCY: Minerals Management Service (MMS), Interior.
ACTION: Interim Rule and Information Gathering.
-----------------------------------------------------------------------
SUMMARY: This interim rule establishes conditions for granting royalty
relief on producing leases through their conversion to Net Revenue
Share (NRS) leases, provides for suspensions of royalty payments on
certain deep-water leases issued as the result of a lease sale held
before November 28, 1995, and defines the information required for a
complete application for royalty relief.
DATES: This interim rule is effective July 1, 1996.
We will consider all comments we receive by July 30, 1996. We will
begin review of comments at that time and may not fully consider
comments we receive after July 30, 1996.
ADDRESSES: Mail or hand-carry comments to the Department of the
Interior; Minerals Management Service; Mail Stop 4700; 381 Elden
Street; Herndon, Virginia 22070-4817; Attention: Chief, Engineering and
Standards Branch.
FOR FURTHER INFORMATION CONTACT: Dr. Marshall Rose, Economic Evaluation
Branch, telephone (703) 787-1536.
SUPPLEMENTARY INFORMATION:
I. Objectives of Royalty Relief
Royalty relief can lead to increased production of natural gas and
oil, creating profits for lessees and royalty and tax revenues for the
government. By this rulemaking, the Secretary seeks to establish
economic incentives to encourage Outer Continental Shelf (OCS) lessees
to incur the expenses or make the capital investments necessary to
maintain or increase production. To the extent possible for approved
applications, we will reduce or suspend royalty payments to permit
lessees to earn a reasonable return on their capital investment for
projects involving new investment. For projects not involving new
investment, we will provide relief sufficient to allow an operating
profit in cases where expenses plus royalties exceed revenues.
The Secretary will implement these royalty relief provisions in
conjunction
[[Page 27264]]
with his stewardship responsibilities for the sound management of
public lands. This includes conservation of resources, obtaining a fair
return to the public on OCS resources, and ensuring that all OCS
development is safe and consistent with sound environmental standards.
II. Legislative Background
The Secretary has broad legislative authority to reduce royalty
rates on OCS leases. The Outer Continental Shelf Lands Act (OCSLA), as
amended, (43 U.S.C. 1337(a)(3)(A)) states:
``The Secretary may, in order to promote increased production on
the lease area, through direct, secondary, or tertiary recovery means,
reduce or eliminate any royalty or net profit share set forth in the
lease for such area.''
This provision gives the Secretary authority to reduce royalties on
producing leases upon application by a lessee. Leases may be in shallow
or deep water and may be located in any area of the OCS. Relief must be
applied for, justified, and granted on a case-by-case basis.
On November 28, 1995, President Clinton signed Public Law 104-58,
which included the Deep Water Royalty Relief Act (DWRRA). Section 302
of the DWRRA amends the OCSLA authority to allow the Secretary to grant
relief on both producing and nonproducing leases and on categories of
leases, rather than only on a case-by-case basis, in order to promote
development, increase production, or encourage marginal production on
Gulf of Mexico leases lying west of 87 degrees, 30 minutes West
longitude. This rulemaking does not include regulations to implement
the expanded discretionary authority to grant royalty relief in 43
U.S.C. 1337(a)(3)(B). Regulations for that purpose may be included in a
future rulemaking.
In addition, the DWRRA also contains three other major provisions
related to leases issued as a result of sales held before and after the
date of the DWRRA's enactment.
First, section 303 establishes a new bidding system that allows the
Secretary to offer tracts with royalty suspensions for a period,
volume, or value of production. On February 2, 1996, we published a
final rule modifying the regulations for the bidding systems we use to
offer OCS tracts for lease (61 FR 3800). Portions of that rule in 30
CFR 260.110(a)(7) address the new bidding system authorized by section
303 of the DWRRA.
Second, section 304 mandates that all tracts offered within 5 years
of the date of enactment in water depths of 200 meters or more in the
Gulf of Mexico west of 87 degrees, 30 minutes West longitude, must be
offered under the new bidding system permitted by section 303. The
Secretary must offer such tracts with a specified minimum royalty
suspension volume based on water depth. We published an interim rule in
the Federal Register on March 25, 1996 (61 FR 12022), specifying the
terms under which the Secretary will make royalty suspensions available
for new deep-water leases issued as the result of sales held after
November 28, 1995.
Third, again in section 302, the DWRRA provides that ``new
production,'' as defined in that Act, from a lease or unit in existence
on the date of its enactment, and in water depths of 200 meters or
greater in the Gulf of Mexico west of 87 degrees, 30 minutes West
longitude, does not qualify for royalty suspensions if the Secretary
determines that the new production would be economic in the absence of
royalty relief. Otherwise, the Secretary must determine the volume of
production on which no royalty would be due in order to make the new
production economically viable. This determination must be made on a
case-by-case basis.
For existing leases or units which had no royalty bearing
production, other than test production, before November 28, 1995, and
which qualify for relief under section 302, the following minimum
volumes of production are not subject to the royalty obligation
specified in the lease:
17.5 million barrels of oil equivalent (MMBOE) for leases
in 200 to 400 meters of water,
52.5 MMBOE for leases in 400 to 800 meters of water, and
87.5 MMBOE for leases in more than 800 meters of water.
These leases may qualify for a larger suspension volume if they
would not be economic at the minimum royalty suspension volume
specified by the DWRRA.
We also may grant a royalty suspension volume for production
resulting from lease development activities pursuant to a Development
Operations Coordination Document (DOCD), or a supplement to an approved
DOCD, approved by the Secretary after November 28, 1995, that would
expand production significantly beyond the level anticipated in a prior
DOCD. In this case, we will grant the royalty suspension volume that we
determine to be necessary to make the new production from the proposed
project economic.
III. The Need for an Interim Rule
The DWRRA requires the Secretary to issue implementing regulations
within 180 days of enactment. We cannot conduct and complete the usual
proposed notice and comment rulemaking process to implement this part
of the DWRRA before the statutorily imposed May 28, 1996, deadline.
However, because the public interest would be best served by meeting
the deadline and by establishing rules for these provisions of the
DWRRA as soon as practicable, we are issuing this interim rule.
Several factors, in combination, have prevented us from issuing
comprehensive rules through the usual rulemaking process by the
statutory deadline. The Department of the Interior was shut down from
December 12, 1995, to January 8, 1996, due to the lack of funding.
Subsequently, MMS offices in the Washington, DC area were closed again
for several days because of the ``blizzard of '96.''
These closings consumed critical time that would have been used to
conduct the planning and preparation necessary to define the issues
involved and devise an orderly process for a comprehensive rulemaking
that would allow for as much advance notice and meaningful public
participation as possible within the statutory deadline. Because of the
complexity of the issues involved in this rulemaking, we believe the
public interest would not be served by severely abbreviating the notice
and comment procedures of the rulemaking process to meet the May 28,
1996, deadline.
Therefore, we decided the public interest would be served best by
instituting a multipart rulemaking to meet the statutory objectives and
allow extensive and meaningful public participation, consistent with
law.
As the first step, we promptly published an Advance Notice of
Proposed Rulemaking (ANPR) in the Federal Register on February 23, 1996
(61 FR 6958), and announced our intent to develop comprehensive
regulations implementing the DWRRA. The ANPR sought comments and
recommendations to assist us in that process. The comment period did
not close until April 8, 1996, leaving too little time for a meaningful
proposed notice and comment rulemaking by May 28, 1996. We also
conducted a public meeting in New Orleans on March 12 and 13, 1996, to
discuss with interested members of the public the matters the ANPR
addressed.
We published an interim rule in the Federal Register on March 25,
1996 (61 FR 12022), specifying the terms under
[[Page 27265]]
which we will make royalty suspensions available for new deep-water
leases issued as a result of sales held after November 28, 1995.
As in the case of the interim rule for royalty suspensions for new
deep-water leases, implementation of the DWRRA's provisions for
existing leases by the Congressionally prescribed deadline is in the
public interest. These provisions should be implemented promptly so
that lessees may proceed with important investment decisions.
Furthermore, as explained below, failure to issue implementing
regulations by the prescribed deadline would create a legal uncertainty
under which we might be required to grant royalty relief to one or more
OCS projects that would not otherwise qualify. In that situation, there
would be potential losses of hundreds of millions of dollars in Federal
revenues.
The availability of royalty suspensions for new production from
existing deep-water leases becomes an important factor in lessees'
decisions about whether or not to proceed with development of oil and
gas on their leases. However, lessees cannot adequately consider or
accurately plan the potential economic benefits of royalty relief until
we issue regulations establishing the procedures for granting a royalty
suspension and defining the data and information required for a
complete application. Respondents to the ANPR indicated their desire to
have us make this information available to them as soon as possible.
Lessees are likely, therefore, to delay investment decisions until
we have implementing regulations in place. These investments are
important to the national and regional economies and any delay could
adversely impact very important economic activity. Thus, it is in the
public interest to proceed to issue an interim rule within the time
frame mandated by Congress.
The establishment of interim regulations is also necessary so that
lessees can make informed decisions about whether to proceed with lease
development activities or allow their leases to expire. Our regulations
(30 CFR 250.13) provide that lessees must engage in drilling,
production or well-reworking activities in order to keep their leases
in force beyond the primary term specified in the lease. If they do
not, then in the absence of production after the primary term of the
lease, their leases expire at the end of the primary term or 90 days
after drilling activities cease.
Of the approximately 1,600 leases in deep water in the Central and
Western Gulf of Mexico, 116 leases are nearing the end of their primary
term. Lessees, aware that Congress was considering the enactment of
royalty relief legislation, may have deferred taking action on their
leases so they could properly account for such relief in calculating
project economics.
However, lessees cannot make the necessary calculations until we
issue implementing regulations. If we were to go through the usual
rulemaking process, some leases could reach their expiration date
before final rules are established. In these cases, some lessees may
allow their leases to expire because they cannot determine whether or
not their leases will qualify for a royalty suspension volume. We
believe this situation contradicts the purpose of the DWRRA and does
not serve the public interest.
Any further delay in issuing even interim rules may place some
leases at a competitive disadvantage. Fields in deep water may consist
of both new leases and leases issued as the result of a lease sale held
prior to November 28, 1995. New leases automatically qualify for a
royalty suspension volume. Our regulations (30 CFR 260.110(d)(6))
provide that in multiple lease fields, those new leases that first
produce the royalty suspension volume are the ones that gain the
royalty relief.
Therefore, operators of new leases may proceed with development
activities as soon as possible with the certainty that they will
receive a royalty suspension volume. Lessees of leases issued as the
result of a lease sale held prior to November 28, 1995, must wait until
rules are issued before they can determine if they qualify for relief.
By going through the usual rulemaking process, lessees of new leases
could gain an advantage over these lessees. We believe this to be
unfair and that the public interest requires that, to the extent
possible, we fully inform lessees and create a ``level playing field''
by issuing this interim rule.
Upon receipt of an application for royalty relief under section 302
of the DWRRA (43 U.S.C. 1337(a)(3)(C)), the Secretary must determine
whether new production from the lease or unit is economic in the
absence of royalty relief. If the new production is determined to be
uneconomic, royalty payments may be suspended on the new production
until the suspension volume specified in the DWRRA, or such greater
volume as the Secretary determines is necessary to make the new
production economically viable, is produced. If the Secretary does not
make the determination within 180 days of receiving an application and
finding that it is complete, the DWRRA mandates royalty suspension
automatically, unless the evaluation period is extended by 30 days, or
for longer than 30 days with the applicant's concurrence.
Delaying a rulemaking on this issue also raises a significant
question of statutory interpretation as to when lessees may begin
submitting applications for royalty relief. One possible interpretation
is that they could submit applications for a royalty suspension volume
under the DWRRA as soon as the Congressional deadline for the issuance
of implementing regulations passed.
Under this interpretation, unless sound application requirements
and suspension terms are established by rulemaking before lessees can
begin submitting applications, some leases or units could receive
automatic royalty suspensions that would otherwise not be granted. In
such cases, the royalty relief would unnecessarily penalize the
taxpayer and the Federal Treasury. These potential losses could amount
to hundreds of millions of dollars. The issuance of an interim rule and
associated guidelines will avoid potential problems regarding
interpretation of the DWRRA's application provisions.
Thus, prudent public policy and the national interest dictate that
we issue this interim rule, thereby avoiding the risk that, however
unlikely, the aforementioned interpretation of the statute might
prevail.
Issuance of this interim rule will not preclude opportunities for
the public to comment on the issues addressed herein. We have
considered the comments submitted in response to the ANPR and in the
public meeting, and we invite comments on this interim rule. We will
also hold another public meeting if there is significant public
interest to do so. As with the interim rule on royalty relief for new
deep-water leases, a final rulemaking would include the provisions
covered by this interim rule. Based on comments received and experience
with initial applications, we may make changes to the matters this
interim rule addresses when we issue a final rule that implements all
provisions of the DWRRA.
The following sections discuss the two types of royalty relief
addressed by this interim rule: first, conversion of existing producing
leases to NRS leases under the OCSLA's general royalty rate reduction
authority; and second, granting of royalty suspension volumes for
certain deep-water leases under the new OCSLA provisions added by the
DWRRA.
[[Page 27266]]
IV. Net Revenue Share Leases
Over the years, we have received 19 applications for royalty rate
reductions under the OCSLA statutory provision as implemented by
regulations at 30 CFR 203.50. Of these, we approved 10 applications, we
denied 7 applications, and we still have 2 applications under review.
While this program has produced worthwhile results, our experience with
it has led us to believe that its terms and conditions need
clarification and restructuring. We also found that applicants needed
more information on how to apply for relief, including the data that
must be submitted for a complete application.
Accordingly on December 14, 1995, we issued interim ``Guidelines
for the Application, Review, Approval, and Administration of the
Royalty Relief Program.'' The guidelines were developed to provide
industry with clear instructions about how to apply for royalty relief.
The guidelines streamline and simplify our royalty relief application
process.
This portion of the rulemaking supplements the guidelines with
additional direction on the data and information required in
applications and revises 30 CFR 203.50 to be consistent with this new
approach.
Criteria and Basis for Relief
All active leases or units that are producing or that produced
previously are eligible for royalty relief under this section.
Royalty relief will be granted to enable lessees of leases with
inadequate revenues to continue production or to encourage lessees to
make additional capital investment to expand production. As a condition
of approval, an applicant must agree to convert its lease to an NRS
lease. The NRS rates will be calculated to allow lessees a return on
operating expenses or new capital, as appropriate, while ensuring
protection of Federal revenue interests.
Applications
Lessees of eligible leases may apply for royalty relief to the
appropriate MMS Regional Director. Applications should be prepared in
accordance with the December 1995 guidelines, subsequent updates, and
these regulations. The data and information required for a complete
application depends on whether the applicant proposes a continuation or
expansion of current production.
Applications from lessees of marginal leases with inadequate
revenues to sustain production must include certain administrative
information, justification for the relief sought, and an NRS economic
viability supplemental report (Sec. 203.53(b) and Sec. 203.55).
Applications from lessees of leases proposing an expansion of
production that would be uneconomic without royalty relief must contain
certain administrative information, justification for the relief
sought, and four supplemental reports:
(1) NRS Economic Viability Report;
(2) Geological and Geophysical Report;
(3) Production Report; and
(4) Engineering Report.
The regulations specify the details of the required information at
Sec. 203.55. The format for submitting the required information is
presented in the our guidelines.
Review and Evaluation Criteria
To qualify for relief, we must determine, based on the application
information, that relief would increase ultimate recovery of reserves
extending the productive life of the lease by at least 1 year. Projects
that merely accelerate the rate of production do not qualify. This
approach is consistent with the OCSLA mandate that royalty relief
should ``promote increased production on the lease area.''
For leases with inadequate revenues to sustain production to
qualify for relief, we must determine that:
(1) Federal royalty payments over the most recent 12-month period
were at least 75 percent of net revenues; and
(2) Federal royalty payments are projected to take an increasing
share of net revenues (Sec. 203.52(c)).
We believe that, under these conditions, production on most leases
is likely to be terminated unless relief is available. Thus, to the
extent that the relief provided keeps a lease in production, one can
say that the relief promoted increased production.
For NRS applications proposing an investment to expand production,
we will determine if the proposed project is economic in the absence of
royalty relief. If development of the project would be economic, then
we will deny the application. If development of the project would not
be economic without royalty relief, then the royalty will be converted
to a NRS rate sufficient to make the project economically viable, as
described in the NRS Guidelines available in the appropriate Regional
Office. In those instances where no amount of royalty relief would make
the project economic, we will deny the application. We will not count
sunk costs in making these determinations.
V. Pre-Enactment Deep-Water Leases
Definitions
As used in the interim rule:
Field means an area consisting of a single reservoir or multiple
reservoirs all grouped on, or related to, the same general geological
structural feature and/or stratigraphic trapping condition. There may
be two or more reservoirs in a field that are separated vertically by
intervening impervious strata, or laterally by local geologic barriers,
or both.
Pre-enactment deep-water lease (PDWL) means an OCS lease issued as
a result of a lease sale held before November 28, 1995. The lease must
be in a water depth of at least 200 meters and in the Gulf of Mexico
west of 87 degrees, 30 minutes West longitude.
Project to significantly expand production (PSEP) means a project
proposed in an approved Supplemental DOCD that will result in an
increase in ultimate recovery of resources from the field and that
involves a substantial capital investment (e.g., the addition of a
fixed-leg platform, subsea template and manifold, tension-leg platform,
multiple well projects, etc.). The project must be on a PDWL.
Sunk costs means costs (as specified in Sec. 203.55) of
exploration, development, and production incurred after the date of
first discovery on the field and prior to the date of application for
royalty relief. Sunk costs also include the costs of the discovery well
qualified as producible under 30 CFR 250.11.
These terms are defined in 30 CFR Sec. 203.50.
Criteria for Consideration of Relief
We will consider an application for the suspension of royalty
payments on a volume of new production from a lease if the lease meets
three basic conditions:
The lease must have been issued as a result of a lease
sale held before November 28, 1995, the date of enactment of the DWRRA.
The lease must be located in water depths of 200 meters or
greater.
The lease must encompass only whole blocks lying west of
87 degrees, 30 minutes West longitude in the Gulf of Mexico.
Units may apply if they include at least one lease that meets these
conditions, but any royalty suspension will apply only to those leases
in the unit that meet these conditions.
Basis for Granting Relief
Section 302(C) of the DWRRA states that an application may be made
on the
[[Page 27267]]
basis of an individual lease or unit. The term ``unit'' is not defined
in the DWRRA. A fundamental issue in implementing the DWRRA is: should
royalty relief for leases or units be based on some geologic or
economic unit, such as a field?
We faced the same issue when we published the interim rule for new
leases on March 25, 1996 (61 FR 12022) which amended Sec. 260.110 to
implement the provisions of section 304 of the DWRRA. In that instance,
new (i.e., ``eligible'') leases receive suspension volumes
automatically, without demonstrating a need for the suspension to
assure economic viability. We have structured this rule to apply the
PDWL royalty suspension provisions consistently with the royalty
suspension provisions for new leases. Accordingly, two principles
established in that interim rule will apply to this rule too.
First, as set forth for new eligible leases in Sec. 260.110(d), we
will allow only one royalty suspension volume per new field (i.e., a
field not producing prior to November 28, 1995). We believe Congress
added ``or unit'' to section 302 of the DWRRA to allow us to evaluate
multi-lease fields. But, in recognition of the objections raised in
response to the ANPR regarding the suggestion that we might compel
unitization, we will require leases in multi-lease fields that are not
unitized to submit a joint application, as discussed below.
We set forth the underlying justification for a field approach in
the preamble to the interim rule establishing the royalty suspension
regulations for new deep-water leases under section 304 of the DWRRA.
Briefly, the minimum royalty suspension volumes which Congress set
forth in the DWRRA were developed from technical analysis conducted to
estimate the royalty suspension volumes needed for capital cost
recovery in developing unproduced oil and gas fields at various water
depths in the Gulf of Mexico. This helps explain the fact that the
chief Congressional sponsor, Senator Johnston, expressly linked the
royalty suspension volumes in the DWRRA to the cost of developing a
field.
Senator Johnston explained that the legislation was intended only
to provide incentives for drilling leases that would not otherwise be
drilled and to bring new fields into production:
It is only with respect to those leases that would not otherwise
be drilled, either existing or future leases, that this amendment
would provide that incentive * * * The Secretary of the Interior
wanted the incentive to be sufficient but not too much. That took a
lot of negotiating * * * [The legislation] should bring on at least
two new fields with approximately 150 million barrels of oil
equivalent from existing leases and it significantly improves the
economics of 10 to 12 possible and probable fields. 141 Cong. Rec.
S. 6731 (daily ed., May 16, 1995) [emphasis added].
This statement strongly indicates that the DWRRA legislation was
not intended to provide each lease in deep water the full royalty
suspension volume. Granting royalty suspensions on a lease basis could
result in much more relief than necessary to bring new fields into
production.
As a hypothetical example, assume a field in 600 meters of water
(the minimum suspension volume associated with 600 meters of water is
52.5 MMBOE) consists of two leases. Assume that our evaluation of the
application under the DWRRA determines that development of the field is
uneconomic without a suspension of royalty and that a royalty
suspension of 35 MMBOE is needed to make development of the field
economically viable. Granting the royalty suspension volume called for
in the DWRRA to each lease would result in a total royalty suspension
volume of 105 MMBOE, three times the amount necessary to make
development of the field economically viable.
Thus, to be faithful to the intent of the DWRRA legislation, the
royalty suspension volumes should be applied on a field basis, rather
than giving each individual lease a full royalty suspension volume.
Second, if a PDWL is part of a field where any current lease
produced prior to November 28, 1995, it cannot receive a royalty
suspension volume from that field (except that a royalty suspension may
be granted for a lease that undertakes a significant expansion of
production on a field that produced before November 28, 1995). Since
those lessees who undertook the initial production from the field (and
can be said to have taken the most risk) would not be eligible for a
royalty suspension volume under the DWRRA, neither should the lessees
of leases on that producing field that begin production after the
DWRRA's enactment. Under these circumstances, Congress certainly
recognized that it is not necessary to encourage production.
We will assign PDWL's to a field the same as described in the
interim rule for new deep-water leases. That is, we will assign a lease
to a field when a well on the lease qualifies as capable of producing
in paying quantities under the regulations at 30 CFR 250.11. If a well
does not qualify under the rule, we will assign the lease to a field
when hydrocarbons are first produced from the lease or when the lease
is allocated production under an approved unit agreement.
The definition of field is set forth in 30 CFR 203.50. The
definition is based on geology. We issue the OCS Operations Field Names
Master List, which lists all the tracts in each field on the Gulf of
Mexico OCS each quarter, with monthly updates.
We recognize that lessees may occasionally disagree with our
determination that a lease is part of a particular field. Lessees may
appeal these designations to the Director in the same manner as bid
rejections are appealed. To appeal a decision that a lease is part of a
particular field, a lessee must file a written request to the Director
within 15 days of when we designate the lease as part of a field. The
Director's response to this request, either affirming or reversing the
earlier decision, cannot be appealed further within the Department of
the Interior.
The deepest water depth on a lease in a field at the time an
approved application for a royalty suspension was submitted establishes
the water depth for that field. The water depth of a lease is governed
by the ``Royalty Suspension Areas'' maps which we publish prior to
lease sales in areas where the deep-water royalty relief program
applies. These maps are based on bathymetric data from the National
Oceanic and Atmospheric Administration. For purposes of drawing the
map, if the water depth contour crosses a block, we include that block
in the deeper water category. We will use the version of that map that
is in effect at the time the royalty suspension application is
submitted to determine the water depth of the field.
Applications
Lessees may submit applications for royalty relief under the
provisions of this interim rule to the MMS Regional Director, Gulf of
Mexico Region. Lessees may submit applications for:
(1) A PDWL or unit in a field that did not produce (other than test
production) prior to November 28, 1995; or
(2) A PDWL or unit proposing development in a supplemental DOCD
approved after November 28, 1995, that will expand production
significantly beyond the level anticipated in a prior DOCD.
Because we have not required DOCD's to show anticipated production,
we have chosen to define significant expansion of production as any
project that will result in an increase in ultimate recovery of
resources from the field and that involves a substantial
[[Page 27268]]
capital investment (e.g., installation of a fixed-leg platform, subsea
template and manifold, tension-leg platform, or multiple well
projects).
The DWRRA directs applicants to provide information required for a
``complete application'' and directs the Secretary to define clearly
the information required. This interim rule requires the submission of
several reports as part of a complete application. The information
required in the reports includes field geology and geophysics, project
design, field development and production plan (including planned time
that production will begin and rates of production), costs (projected
and past, if any), and a discounted cash flow (DCF) analysis of the
field development and production.
The Gulf of Mexico Regional Office will make guidelines available
to all lessees. These guidelines contain detailed instructions on the
specific information and data elements required for a complete
application.
As specified in the interim rule at Sec. 203.55(c), the applicant
or the applicant's authorized representative must certify that all
information submitted in the application is accurate and complete. The
application must be accompanied by a report prepared by an independent
certified public accountant (CPA) expressing an unqualified opinion on
the accuracy of the historical financial information presented in the
application. The applicant must make the independent CPA available to
us to respond to questions which may arise regarding the evaluation of
the historical information. This requirement does not prevent further
review of the applicant's records which support the historical
financial information included in the application.
In developing the information requirements for a complete
application, we observe that much of the geologic and economic
information to be provided by an applicant who holds a non-producing
PDWL is, by its very nature, imprecise (i.e., estimated or projected).
Thus, it is important to set information requirements that enable us to
make the DWRRA determinations with reasonable certainty.
To reduce the uncertainty of the information, the application
should be submitted as late in the development process as possible,
though before production commences. By waiting until later in the
development process, activities such as drilling of development wells
and procurement of facilities will provide more reliable information
about costs and potential future income.
We note that lessees would prefer to have a decision made about
relief early in the life of the lease to help in project planning and
in arranging financing. Lessees with leases on a field that could be
economic with royalty relief want to know whether and how much relief
they will receive before making substantial post-discovery investments
on their leases. Thus, there is a trade-off between our need for
reasonably complete information and the lessee's desire for an early
decision.
Our decisions on this issue incorporate ideas developed during
ongoing discussions of possible new types of regulatory approvals
relating to the development of deep-water oil and gas leases. A
reasonably clear point in the OCS lease development process exists when
detailed engineering and design activities necessary for the
development of discovered resources have been completed, but capital
investment for procurement and construction has not begun. The lessee
has advanced the engineering, geology, and geophysics to a degree that
more certainty exists in comparison to the earlier, exploration stage.
Yet, the lessee has not made major financial commitments such as
procuring facilities or drilling development wells.
Under the requirements for a complete application, the lessee must
provide its design of production facilities needed for field
development. The design of development and production facilities
reflects the applicant's belief that the field merits development and
qualifies for royalty relief. This approach avoids focusing on
discoveries that have not yet been delineated and making major
investments in the absence of knowledge about whether and to what
extent the field qualifies for royalty relief and, if so, how large a
royalty suspension volume we will grant.
A complete application must include an approved DOCD for a PDWL or
unit or a supplemental DOCD for a PSEP. In joint applications, at least
one lessee of a lease participating in the application must have an
approved DOCD or an approved supplemental DOCD. The requirement for an
approved DOCD for a complete application helps avoid submission of
premature applications, since a DOCD covers the major system elements
such as the platform and the development wells. A DOCD is not normally
submitted to us until development design has progressed to a fairly
final stage.
We considered requiring mandatory unitization of leases on a field
if necessary to provide for the most efficient development of the
field. However, in recognition of the responses to the ANPR in which
virtually all lessees who provided comments opposed mandatory
unitization, and since we continue to have the authority to compel the
unitization of operations on OCS leases on a case-by-case basis, we
have elected not to require the unitization of field operations as a
necessary feature of a complete application for the suspension of
royalty under the DWRRA.
Rather, we are requiring joint application procedures. In applying
for royalty relief, all lessees on a field must submit a combined,
joint application (Sec. 203.53(b)(3)(i)). If lessees do not want to
share proprietary data with other lessees on the field, the proprietary
geologic and geophysical data that is part of the joint application can
be submitted separately and we will protect its confidentiality
(Sec. 203.53(b)(3)(ii)). We will not deem the application complete
until we receive all the required information for each lease on the
field. If the application is subsequently denied, MMS will not disclose
a lessee's proprietary data to other lessees in our explanation of our
determinations.
The approach we have chosen to pursue for this interim rule
represents a reasonable middle ground that protects the public interest
while still allowing lessees flexibility of operation. That is, while a
joint application that describes joint development of the field is
required, lessees may develop their individual leases independently if
they so choose.
Some lessees may be unwilling to provide the information necessary
for a complete joint application even if it means foregoing an
opportunity to share in the royalty suspension volume assigned to a
field. In such cases, we will grant a good cause exception to the joint
application requirement and will accept and evaluate an application
from the remaining lessee(s) (Sec. 203.53(b)(3)(iii)). The application
must include evidence of efforts to gain the cooperation of the non-
participating lessee(s). While the noncooperating lessee(s) forfeits
the right to receive a royalty suspension for the field that is the
subject of the application under these DWRRA provisions, it may apply
for royalty relief under other provisions.
Lessee(s) on a field may apply only once for a mandated royalty
suspension volume for that field, except under the circumstances
described below or for a PSEP (Sec. 203.53(b)(3)(iv)). The DWRRA
specifically allows lessees to request a redetermination under certain
limited circumstances, as discussed below. However, if unlimited
applications were
[[Page 27269]]
permitted, there would be no need for the DWRRA's redetermination
provisions. Therefore, we believe it is consistent with Congressional
intent to allow only one application per field, except under the
redetermination criteria or when we withdraw a prior approval of a
royalty suspension volume, as discussed below.
Within 20 working days of the receipt of an application, we will
determine whether it is complete (Sec. 203.53(c)(1)(i)). If the
application is complete, we will notify the applicant and start to
evaluate it. If the application is incomplete, we will provide the
applicant an explanation of the additional data we need to make it
complete.
The DWRRA provides that if we do not make our required
determinations within 180 days after we receive a complete application
(or 120 days in the case of a redetermination), we may extend the time
period for making our determination or redetermination for 30 days, or
for longer than 30 days if agreed to by the applicant
(Sec. 203.53(c)(1)(ii)).
If we do not complete our required determinations in the prescribed
time period, the field is granted the minimum royalty suspension volume
automatically. In the case of a PSEP, the DWRRA specifies that no
royalty is due on such production for a period of one year following
the start of such production.
The interim rule specifies that the 180-day time period for our
determination, or 120-day time period for redeterminations, begins when
we have determined that the application is complete and so notify the
applicant.
We view the evaluation process as one where we may interact with
the applicant. If, during this process, we find that data or
information in the application is unclear, inconclusive, or otherwise
cannot be relied upon, we will notify the applicant to provide such new
data or information as is needed to make the application complete and
accurate. We will request that the 180- or 120-day time period be
tolled from the time the applicant receives our notice until the needed
information is provided. When the applicant supplies the needed
information, we will restart the time period with the same number of
days remaining for us to make our determinations as when the time was
tolled. The alternative to tolling the clock is for us to reject the
application because the data and information does not adequately
support the determination we must make under the DWRRA.
Review and Evaluation Procedures
In evaluating applications for deep-water royalty relief, we will
make the following determinations:
Would the new production be economic without a royalty
suspension; and
Is there any royalty suspension volume that we could grant
that would make the new production economic?
If the answer to the first determination is that production would
not be economic without relief and the answer to the second is that
there may be a royalty suspension volume that would make the new
production economic, we will proceed to a third determination: what
amount of relief should we grant, i.e., the minimum royalty suspension
volume mandated in the DWRRA or a volume in excess of that minimum?
The OCSLA authorizes these determinations in section
8(a)(3)(C)(ii). First, the provision reads, ``the Secretary shall
determine * * * whether new production from such lease or unit would be
economic in the absence of the relief * * *'' Second, that same section
mandates that the Secretary ``determine the volume of production from
the lease or unit on which no royalties would be due in order to make
such production economically viable * * * .'' If there is no amount of
royalty relief which would make the new production economic, then there
is no way the Secretary can calculate the ``volume of production from
the lease or unit on which no royalties would be due in order to make
such production economically viable * * * .'' Thus, our determination
of whether there exists a royalty suspension volume that would make new
production economic is necessary for the Secretary to proceed to a
determination of a volume of royalty suspension that would make
production economically viable.
If new production from a field or project is economic in the
absence of royalty relief, the relief provisions of the DWRRA do not
authorize relief and we will reject the application. If no amount of
royalty relief would make a field (or project) economic, we will
disapprove the application. In such a case, the royalty relief would
not induce the lessee to develop the field or marginal project.
The DWRRA requires us to determine whether new production would be
``economic'' taking into consideration the risks of deep-water
development and all costs associated with exploration, development, and
production. However, the term ``economic'' is not defined in the DWRRA.
For this interim rule, we have defined ``economic'' as a project or
group of related projects, such as field-wide development, having a
positive net present value as calculated with MMS-stipulated DCF
techniques.
The DWRRA requires us to consider all costs of exploration,
development, and production in determining whether a field is economic
in the absence of royalty relief. In making this determination, we will
include only those sunk costs incurred after the date of field
discovery because of the difficulties in attributing to a particular
field those sunk costs incurred before a discovery.
Similarly, we will not include sunk costs when we determine whether
a field can be made economic with royalty relief or when we determine
the amount of royalty suspension volume needed to make the new
production economic. First, only prospective costs are relevant to
determining the royalty suspension volume needed to make the new
production economic. Second, the DWRRA does not state that ``all
costs'' must be considered in determining the appropriate suspension
volume.
This treatment of sunk costs applies only to fields that did not
produce, other than test production, prior to the date the application
for royalty suspension is submitted. We will not count any sunk costs
where production commenced prior to the date the application is
submitted or when the application is proposing a significant expansion
of production. According to economic theory, such costs generally are
not relevant to decisions about whether to continue producing from a
developed field. Since the intent of the DWRRA is to bring new fields
into production-not to ensure a rate of return on developed fields-we
will not count sunk costs in such cases.
The guidelines provide more detailed information on costs, prices,
and discount rates. In general, the applicant provides the cost data we
use to make our determinations. Based on our experience in
administering NRS royalty relief, we will not include some types of
costs in the analysis, as specified in Sec. 203.55(b). We will verify
the costs reported and, where sunk costs are important, this
verification may include an audit of those costs. The costs and the
underlying geology and design data are given in ranges or with
probability distributions, reflecting the uncertainties and risks of
the field development.
We will provide applicants with the assumptions for oil and gas
prices to use in the DCF analyses. We will develop future price
assumptions after
[[Page 27270]]
considering long-term projections of oil and gas prices by major
forecasters, such as (but not limited to) the Energy Information
Administration, Data Resources Incorporated, and Wharton Econometrics.
We will update these price forecasts periodically. These assumptions
provide reasonable forecasts that all applicants can employ. Applicants
may adjust prices for the expected quality of the resource, documenting
these adjustments as discussed in our guidelines.
We will also specify a range of discount rates from which
applicants will choose a particular rate. The reason for allowing a
choice of discount rates is that projects differ in their risk
characteristics, and further, operators might have different risk
preferences reflected in their target rates of return. Our guidelines
will set the range of discount rates for use in the DCF analyses. We
may change the range periodically.
In determining the volume suspension needed to make the field
economically viable, we will employ a similar DCF model and the same
price and discount assumptions used to show whether royalty relief can
make the field economic. We will also input the geological assessments,
engineering designs, production scenarios and cost components included
in the application, subject to our review and verification of their
accuracy and efficiency. In cases where we find that assumptions other
than those provided by the applicant are more appropriate, we reserve
the right to make all necessary changes in the set of inputs.
In general, we have structured our determinations following the
principle that the DWRRA aimed to give substantial, but not excessive,
incentive to develop marginal fields. In this manner, we seek to avoid
the errors of rejecting deserving applications or giving large amounts
of volume suspension when they are not needed.
Note that being granted a royalty suspension volume on production
from a PDWL under the regulations established by this rulemaking does
not preclude a lessee from obtaining further relief under the pre-DWRRA
provisions of the OCSLA, the expanded OCSLA royalty relief provisions
created by the DWRRA, or under the significant expansion of production
portion of the DWRRA.
Also, as noted above a lessee may apply only once for a royalty
suspension volume for a given field under the DWRRA provisions, except
as provided below.
Redeterminations
The DWRRA provides that an applicant may request a redetermination
of the Secretary's findings prior to the start of new production if a
significant change occurs in the factors upon which we based the
original determination. We believe that the Congress established this
requirement, in part, to place reasonable limits on the number and
frequency of redetermination requests so the Secretary would not need
significant new staff resources to administer the program.
Accordingly, we will accept an application for a redetermination
only when:
(1) Changes in resource information (e.g., gross resources,
quality, flow rates) are of sufficient magnitude that, had our
evaluation of the original application included the new data, the
results of our determinations would have been materially different. The
new resource information must result from new exploration activity such
as drilling a new well or acquiring new 3-D seismic data that did not
exist at the time of the original application. A reinterpretation of
existing data does not qualify as a significant change in resource
information; or
(2) Average annual prices of oil and gas have fallen by 25 percent
since the previous application. These averages are determined by:
(A) using daily closing prices for light sweet crude oil and
natural gas on the New York Mercantile Exchange (NYMEX) over 12-month
periods; and
(B) weighting the annual average prices by the volumes of oil and
gas (in barrels of oil equivalent) identified in the most likely
development and production scenario (required under Sec. 203.55 and
described in the guidelines) in the previous application for royalty
relief. (See Sec. 203.53(d)(1)(ii) for details.)
We are establishing this condition to avoid having economic
projects appear uneconomic, and therefore qualify for a royalty
suspension volume, due to what may only be a brief temporary downturn
in prices. While smaller price changes can affect the economic
viability of development, larger, sustained changes in underlying
prices must occur before we would change the price scenarios used in
evaluating applications. Further, a drop in oil prices should not
trigger a potential redetermination for a project proposing to develop
a 100 percent gas field or vice versa. Therefore, the weighted average
price change is required; or
(3) Prior to starting construction of your project, estimated
project development costs amount to more than 120 percent of the
eligible development costs included for the most likely development
scenario as set forth in the previous application.
Applicants requesting a redetermination must include a new complete
application in accordance with the requirements of Sec. 203.53(b) and
Sec. 203.55. We will evaluate the request to see if the applicant is
eligible for a redetermination. If so, we will proceed to evaluate the
application.
As with an original application for a royalty suspension, we have
20 working days to determine whether an application for a
redetermination is complete. If the application is complete, we must
evaluate the application within 120 days. We can extend this period for
30 days, or longer if agreed to by the applicant(s).
Withdrawal of Approvals and Changes in Material Fact
If we find that an applicant provided false historical information
or intentionally inaccurate data that was material to us in granting
royalty relief under this section, we will rescind our approval of that
relief as of the date of the approval. The applicant must pay royalties
and late payment interest determined under 30 U.S.C. 1721 and 30 CFR
218.54 on all volumes of production on which royalty was not paid. The
lessee also may be subject to penalties under other provisions of law.
We further reserve the right to withdraw our approval of a royalty
suspension if a change in material fact occurs that is significant
enough to invalidate the basis on which we originally evaluated and
approved the application. Material changes that will result in a
withdrawal of an approved royalty suspension volume include:
(1) The lessee changes the type of development system proposed in
the approved application. For example, the development proposal changes
from a stand-alone platform, as proposed in the approved application,
to a much less expensive subsea template and tie-back.
(2) Construction of the production system described in the
application does not commence within 2 years of the date of application
approval, notwithstanding any suspensions of operations.
(3) Actual development costs incurred prior to the commencement of
production, other than test production, amount to less than 80 percent
of the estimated development costs included for the most likely
development and production scenario presented in the approved
application.
[[Page 27271]]
We will use the pre-production report (Sec. 203.53(c)(4)) to
determine whether the actual capital costs meet this threshold. As an
incentive for efficient investment and to provide greater certainty at
the time of the application, a portion of the originally granted
royalty relief can be automatically retained. If the applicant informs
us of the development cost discrepancy in the pre-production report,
the applicant will be entitled to 50 percent of the approved royalty
suspension volume with no further action required (see
Sec. 203.53(e)(3)(i)). If we discover the development cost discrepancy
after production, other than test production, has started, approval of
the royalty suspension volume will be retroactively withdrawn (see
Sec. 203.53(e)(3)(iii)).
However, if the royalty suspension volume resulted from a
redetermination based on a change in capital costs, as discussed above,
we will withdraw our approval of the application if actual development
costs are less than 90 percent of the estimated development costs
included in the most likely development and production scenario in the
approved application, and the lessee will not be permitted to retain
any of the approved royalty suspension volume (see
Sec. 203.53(e)(3)(ii)).
We considered other factors as grounds for withdrawal of our
approval of an application, but we concluded that the factors discussed
above were sufficient to protect the public interest.
The applicant may initiate a new application for a suspension
volume when its previously approved royalty suspension volume is
withdrawn for reasons other than the submission of false information or
intentionally inaccurate data.
The material changes triggering a potential withdrawal of approval
of the royalty suspension volume are at least partially at the
discretion of the lessee(s) and the potential for a subsequent
withdrawal of our approval for a royalty suspension should be
considered by applicants when deciding to make changes of this nature.
Allocation Rules
Fields in deep water may consist of one or more leases, including
leases issued as a result of sales held before and after November 28,
1995, and leases in different water depths. Therefore, to make royalty
relief consistent with the DWRRA, we need to specify how the royalty
suspension volume applies in many different circumstances. Accordingly,
the following cases illustrate how the rule applies in determining
eligibility for, and the volume of, royalty suspensions. (All cases
assume that all eligible leases on a field participate in the joint
application for a royalty suspension volume; the term ``eligible
leases'' is defined in the interim rule for deep-water royalty relief
on leases issued from sales after November 28, 1995 (61 FR 12022, 30
CFR 260.110)).
Case 1. If a field consists of a single PDWL and the application
is approved, no royalty payment is required on production from the
lease until that production equals the royalty suspension volume
granted.
Case 2. If a field consists of more than one PDWL and the
application is approved, payment of royalties on production from the
PDWL's is suspended until their cumulative production equals the
suspension volume granted. The royalty suspension volume for each
lease equals each lease's actual production (or production allocated
under an approved unit agreement) until cumulative production from
the field equals the field's royalty suspension volume.
Case 3. If a PDWL or an eligible lease is added to a field that
has been granted a royalty suspension volume under the regulation
established by this rulemaking, the field's royalty suspension
volume will not change. The additional lease may receive a royalty
suspension volume only to the extent of its production before the
cumulative production from the field equals the approved royalty
suspension volume.
In this case, the added PDWL will not be required to submit the
full application required of the original applicants. A full
application is not necessary because we have already evaluated the
field and set an appropriate royalty suspension volume. We see no
need to reevaluate that determination. Accordingly, the operator of
the PDWL can apply for relief using an abbreviated application
available at the Gulf of Mexico OCS Regional Office.
Case 4. If the PDWL is part of a field that has a royalty
suspension volume for eligible leases under Sec. 260.110, the
lessee(s) may apply for relief. If the application meets the
economic and economic viability tests, all of the leases can share
the royalty suspension volume until total cumulative production from
the field attains the royalty suspension volume that is the greater
of the volume established for the eligible leases under Sec. 260.110
or the volume determined pursuant to the regulation established by
this rulemaking.
Case 5. A lease may receive more than one royalty suspension
volume. An application may be made for relief for a lease under the
regulations established by this rulemaking for each field that
includes the lease. Each field will receive a separate royalty
suspension volume if it meets the evaluation criteria described
below. An application also may be made for relief for a project that
would result in a significant expansion of production, even if we
have already granted a royalty suspension volume to the field that
encompasses that project. For a PSEP, this is how the rule applies:
Case 6. If a PDWL is the only lease on the project and the
application based on a significant expansion of production is
approved, no royalty payment is due on the incremental production
from the project until that production equals the royalty suspension
volume granted.
Case 7. If the expansion of production project includes more
than one lease and the application is approved, payment of royalties
on incremental production from the project is suspended until the
lessees' cumulative incremental production from the project equals
the suspension volume granted. The royalty suspension volume for
each lease equals each lease's actual production from the project
until cumulative production equals the project's royalty suspension
volume.
In all cases, the addition of a lease to a field that has an
established royalty suspension volume will not change the field's
royalty suspension volume, even if the added lease is in deeper
water.
Other Issues
Appeals--Our determinations and redeterminations under 43 U.S.C.
1337(a)(3)(C) are final agency actions which are judicially reviewable
under section 10(a) of the Administrative Procedure Act (5 U.S.C. 702).
Requests for judicial review of a determination or redetermination
under 43 U.S.C. 1337(a)(3)(C) must be filed within 30 days of our
decision.
Gas-to-oil conversion factor--The royalty suspension volumes are
measured in millions of barrels of oil equivalent. For the purposes of
this rule, 5.62 thousand cubic feet of natural gas equal one barrel of
oil equivalent, as measured at 15.025 pounds per square inch (psi)
pressure, 60 degrees Fahrenheit, and fully saturated
(Sec. 203.53(g)(5)). This is the conversion factor traditionally used
in the Gulf of Mexico and is the same factor specified in
Sec. 260.110(d)(11) for calculating royalty suspension volumes for new
leases.
Non-royalty bearing production--Under this rule, any lease-use
production that otherwise is not subject to royalty does not count
toward the royalty suspension volume.
Price escalation clause--In accordance with section 302, in any
calendar year during which the arithmetic average of the daily closing
prices on the NYMEX for light sweet crude oil exceeds $28.00 per
barrel, adjusted for inflation as described below, any royalty relief
we grant under the provisions of this rule for DWLP's and PSEP's is
suspended and any production of oil is subject to royalties at the
lease stipulated royalty rate. However, this production counts as part
of the established royalty suspension volume. By January 31 of the year
following the calendar year in which the price exceeded $28.00 per
barrel, the lessee must pay the royalty due plus
[[Page 27272]]
interest in accordance with 30 U.S.C 1721 and 30 CFR 218.54, on any
volume of oil produced during the previous year on which no royalties
were paid.
In any year following a calendar year in which the arithmetic
average of the daily closing prices on the NYMEX for light sweet crude
oil exceeded $28.00 per barrel, as adjusted for inflation, the lessee
must pay royalties on all the oil it produces that year. If, after the
end of the year, the arithmetic average of the daily closing prices on
the NYMEX for light sweet crude oil for that year was $28.00 per barrel
or less, as adjusted for inflation, the lessee is entitled to a refund
or credit, with interest, of royalties paid that year on any royalty
suspension volume for oil production. Regulations for receiving refunds
or credits are at 30 CFR part 230.
This rule similarly applies to natural gas. In any calendar year
during which the arithmetic average of the daily closing prices on the
NYMEX for natural gas exceeds $3.50 per million British thermal units
(Btu's), adjusted for inflation as described below, any royalty relief
we grant under the provisions of this rule for DWLP's and PSEP's is
suspended and any production of gas is subject to royalties at the
lease stipulated royalty rate. However, this production counts as part
of the established royalty suspension volume. By January 31 of the year
following the calendar year in which the price exceeded $3.50 per
million Btu's, the lessee must pay the royalty due plus interest in
accordance with 30 U.S.C 1721 and 30 CFR 218.54, on any volume of gas
produced during the previous year on which no royalties were paid.
In any year following a calendar year in which the arithmetic
average of the daily closing prices on the NYMEX for natural gas
exceeded $3.50 per million Btu's, as adjusted for inflation, the lessee
must pay royalties on all the gas it produces that year. If, after the
end of the year, the arithmetic average of the daily closing prices on
the NYMEX for natural gas for that year was $3.50 per million Btu's or
less, as adjusted for inflation, the lessee is entitled to a refund or
credit, with interest, of royalties paid that year on any royalty
suspension volume for gas production. Regulations for receiving refunds
or credits are at 30 CFR part 230.
To adjust for inflation, change the prices referred to above (i.e.,
$28.00 per barrel for light sweet crude and $3.50 per million Btu's for
natural gas) during each calendar year after 1994 by the percentage, if
any, by which the implicit price deflator for the gross domestic
product changed during the preceding calendar year.
The particulars of this provision of the DWRRA are included at
Sec. 203.53(h) (6)-(8) of this rulemaking.
Termination of royalty suspension volumes--A royalty suspension
will continue until the end of the month in which the cumulative
production from the applicable leases in the field or project reaches
the royalty suspension volume for the field or project. We will provide
monthly production data to all lessees in the field or project.
However, this data may not become available until shortly after
production exceeds the royalty suspension volume. In such cases,
royalties still will be due on the last day of the second month
following the month in which cumulative production from the field or
project reaches the royalty suspension volume. Any royalties paid late
will be subject to interest pursuant to 30 CFR 218.54.
VI. Recovery of Costs
In accordance with Federal policy and statute, we will charge
lessees applying for royalty relief under the provisions of the
regulation promulgated by this rulemaking an amount which recovers our
cost of processing their applications. The Administrative Procedure Act
(31 U.S.C. 9701) and Office of Management and Budget Circular A-25
require that agencies recover their costs when they provide services
that confer special benefits or privileges to identifiable non-Federal
recipients. Processing of applications for royalty relief clearly falls
within this mandate.
Furthermore, the collection of such fees is specifically authorized
by the Omnibus Appropriations Bill (Pub. L. 104-134, 110 Stat. 1321,
April 26, 1996). The statute provides: ``That beginning in fiscal year
1996 and thereafter, fees for royalty rate relief applications shall be
established (and revised as needed) in Notices to Lessees, * * * for
the costs of administering the royalty rate relief authorized by 43
U.S.C. 1337(a)(3).''
We estimate that our costs for processing NRS applications will
range from $8,500 (continuation of production) to $22,500 (project
involving capital expansion). For applications for deep-water royalty
relief, we estimate that our costs will range from $27,500 to $50,000
depending on the number of leases involved and the complexity of the
proposed development project. For some applications, we may find it
necessary to audit the financial data submitted to make an adequate
determination on the economics of the proposed development. We estimate
that it will cost us up to $40,000 to conduct such an audit.
We will issue a Notice to Lessees (NTL) that will provide more
detailed information on the amounts of royalty relief application
processing costs and when and how applicants may make payments to us.
We will revise the NTL periodically to reflect our cost experience and
to provide other information helpful or necessary for the
administration of this program.
VII. Administrative Matters
Executive Order (E.O.) 12866
The interim rule is significant due to novel policy issues arising
out of legal mandates, and the Office of Management and Budget (OMB)
has reviewed this rule. We will make a copy of this determination
available on request.
We focused on impacts on royalty revenues of regulatory
alternatives in determining the possible economic effects of
implementing section 302 of the DWRRA. We assumed that there would not
be significant impacts on labor and capital because, given current
constraints on the availability of deep-water drilling rigs, companies
active in these areas would make similar alternative investments in the
absence of the DWRRA over the near term.
We analyzed two alternatives for implementing section 302. The
approach in this interim rule (MMS approach) gives a single royalty
suspension volume for each qualifying field. The alternative approach
gives each individual lease or unit separate royalty suspension
volumes, subject to the minimum volumes specified in the DWRRA.
Because the DWRRA instructs us to grant royalty relief only in
situations that are uneconomic at the lease-stipulated royalty rate,
the revenue effects are the additional royalties that may be collected
from fields that would otherwise not be developed until a later time,
if at all. We estimated these effects by extrapolating to all known
deep-water fields the results of detailed analyses of 30 fields in the
relevant water depths. The MMS approach generates up to an estimated
$45 million per year in royalty revenue in peak years. The alternative
approach frequently results in no royalty payments, and when such
payments do occur, they would be less than the royalties received under
the MMS approach. Thus, in both cases, the economic effects are less
than $100 million annually.
We chose the approach embodied in this interim rule because:
The DWRRA's primary author stated that he intended the
DWRRA to
[[Page 27273]]
encourage production from new fields without providing too much relief;
The MMS approach provides a substantial incentive for
developing marginal fields in deep water while still ensuring a
reasonable return to the Treasury;
The minimum suspension volumes specified in the DWRRA were
derived from an analysis of fields, not individual leases; and
This rule needs to be consistent with the rules for
royalty suspensions on deep-water tracts leased after November 28,
1995, in the same parts of the Gulf of Mexico so that all deep-water
OCS lessees receive equitable treatment.
Regulatory Flexibility Act
This rule will not have a significant effect on small entities.
This rule establishes the terms and conditions for granting royalty
relief under the provisions section 8(a)(3)(A) of the OCSLA and royalty
suspension volumes under the DWRRA for certain deep-water OCS Gulf of
Mexico leases that were issued as the result of a lease sale held prior
to November 28, 1995.
The estimates of development costs for fields in the deep water of
the Gulf of Mexico range from over $10 million to about $2 billion. We,
therefore, concluded that, in general, the entities that engage in
offshore oil and gas development and production activities are not
small due to the technical and financial resources and the experience
needed to safely conduct such activities.
Small entities who are likely to work in the deep waters of the OCS
are primarily contractors who provide services such as catering or
custodial services for manned facilities. This rule will impact these
entities only to the degree that the royalty relief provided results in
the drilling of additional wells and installation of additional manned
facilities.
Administrative Procedure Act
We have determined, in accordance with 5 U.S.C. 553(b)(3)(B) of the
Administrative Procedure Act, that a notice of proposed rulemaking is
not required and is impracticable in the issuance of this rule. We
invite comments on this interim rule so changes can be made in the
future, if warranted.
Paperwork Reduction Act
The MMS has submitted the information collection requirements in 30
CFR 203 to the Office of Management and Budget (OMB) with a request for
emergency processing. We have stated that the time period for OMB
approval should coincide with the effective date of this Interim Rule.
The information collection in this rule has been approved on an
emergency basis through August 31, 1996, under OMB control number 1010-
0071. However, we still will conduct a full review and comment process
for this collection of information. The new title, ``30 CFR 203, Relief
or Reduction in Royalty Rates,'' is consistent with that of the interim
final rule for Part 203.
Send comments regarding the burden or any other aspect of the
collection of information contained in this part, including suggestions
for reducing the burden, to the Information Collection Clearance
Officer, Minerals Management Service, Mail Stop 2300, 381 Elden Street,
Herndon, VA 22070-4817 and to the Office of Information and Regulatory
Affairs, Office of Management and Budget, Attn: Desk Officer for the
Department of the Interior (OMB control number 1010-0071), Washington,
DC 20503.
The Paperwork Reduction Act of 1995 provides that an agency may not
conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid OMB
control number.
Respondents to this collection of information are Federal oil and
gas lessees. The frequency of response is on an occasion basis. We
expect the number of responses (applications) for the remainder of this
fiscal year to be relatively small. The number will peak during fiscal
year 1997 and decline thereafter. The following chart represents an
average of the anticipated number of annual applications over a three
year period and the associated reporting burdens. The burden estimates
include the time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and
reviewing the collection of information.
OCSLA
------------------------------------------------------------------------
Response
FR Doc. 96-13626 Royalty Relief for Producing Leases and Certain Existing Leases in Deep Water
s Hours per Hours per
Type of application per year response year
------------------------------------------------------------------------
Leases with inadequate revenues
to sustain continued production. 4 300 1,200
Leases proposing an expansion of
production that would be
uneconomic absent relief........ 7 800 5,600
------------
Total annual burden........ ........... ........... 6,800
------------------------------------------------------------------------
DWRRA
------------------------------------------------------------------------
Responses Hours per Hours per
Type of Application per year response year
------------------------------------------------------------------------
DWRRA lease on a field that did
not produce prior to 11/28/95... 23 1,200 27,600
DWRRA leases proposing a
significant expansion of
production...................... 7 800 5,600
Redetermination.................. 6 800 4,800
Short Form Applications.......... 7 40 280
--------------------------------------
Total annual burden........ ........... ........... 38,280
------------------------------------------------------------------------
In addition to the hour burden outlined above, there are two other
cost burdens to the respondents. (1) We will charge lessees
(respondents) applying for royalty relief an amount which covers the
cost of processing their applications. This is discussed above in
Section VI. Recovery of Costs. (2) A respondent's application or pre-
production report must be accompanied by a report prepared by an
independent certified public accountant as described in section
203.55(c) of the rule.
[[Page 27274]]
Takings Implication Assessment
The Department of the Interior certifies that this rule does not
represent a governmental action capable of interference with
constitutionally protected property rights. A Takings Implication
Assessment prepared pursuant to E.O. 12630, Government Action and
Interference with Constitutionally Protected Property Rights, is not
required.
E.O. 12988
The Department has certified to the OMB that this regulation meets
the applicable standards provided in section 3(b)(2) of E.O. 12988.
National Environmental Policy Act
We examined the interim rule and have determined that it does not
constitute a major Federal action significantly affecting the quality
of the human environment pursuant to section 102(2)(C) of the National
Environmental Policy Act of 1969 (42 U.S.C. 4332).
Unfunded Mandate Reform Act of 1995
This rule does not contain any unfunded mandates to State, local,
or tribal governments or the private sector.
List of Subjects in 30 CFR Part 203
Continental shelf, Government contracts, Indians-lands, Minerals
royalties, Oil and gas exploration, Public lands--mineral resources,
Sulfur.
Dated: May 20, 1996.
Bob Armstrong,
Assistant Secretary, Land and Minerals Management.
For the reasons in the preamble, the Minerals Management Service
(MMS) is amending 30 CFR part 203 as follows:
PART 203--RELIEF OR REDUCTION IN ROYALTY RATES
1. The authority citation for part 203 continues to read as
follows:
Authority: 25 U.S.C. 396 et seq.; 25 U.S.C. 396a et seq.; 25
U.S.C. 2101 et seq.; 30 U.S.C. 181 et seq.; 30 U.S.C. 351 et seq.;
30 U.S.C. 1001 et seq.; 30 U.S.C. 1701 et seq.; 31 U.S.C. 9701; 43
U.S.C. 1301, et seq.; 43 U.S.C. 1331 et seq.; and 43 U.S.C. 1801 et
seq.
2. Subpart A is added to read as follows:
Subpart A--General Provisions
Sec. 203.1 Authority for information collection.
(a) The Office of Management and Budget (OMB) approved the
information collection requirements in part 203 under 44 U.S.C. 3501 et
seq. and assigned OMB control number 1010-0071. The MMS uses the
information to determine whether granting a royalty relief request will
result in the production of resources that would not be produced
without such relief. The application for royalty relief must contain
sufficient financial, economic, reservoir, geologic and geophysical,
production, and engineering data and information to determine whether
relief should be granted in accordance with applicable law. the
application also must contain sufficient data and information to
determine whether the requested relief will result in an ultimate
increase in resource recovery and provide for reasonable returns on
project investments. The applicant's requirement to respond is related
only to the request to obtain royalty relief. The applicant has no
obligation to make this request.
(b) An agency may not conduct or sponsor, and you are not required
to respond to, a collection of information unless it displays a
currently valid OMB control number.
(c) Send comments regarding the burden of this information
collection or any other aspect of the collection of information under
provisions of this part, including suggestions for reducing the burden,
to the Information Collection Clearance Officer; Minerals Management
Service, Mail Stop 2300, 381 Elden Street; Herndon, Virginia 20170-4817
and the Office of Management and Budget; Office of Information and
Regulatory Affairs, Attn: Desk Officer for the Department of the
Interior (1010-0071); Washington, DC 20503.
(d) The MMS will protect information considered confidential or
proprietary under applicable law and under regulations at
Sec. 203.53(b)(ii) and part 250 of this chapter.
3. Subpart B is revised to read as follows:
Subpart B--OCS Oil, Gas, and Sulfur, General
Sec.
203.50 Definitions.
203.51 What is MMS's authority to grant royalty relief?
203.52 Net revenue share royalty relief.
203.53 Royalty relief for certain deep-water leases in the Gulf of
Mexico.
203.54 (Reserved)
203.55 What information is required for the net revenue share
royalty relief and deep-water royalty relief application
supplemental reports?
203.56 Recovery of application processing costs.
Subpart B--OCS Oil, Gas, and Sulfur, General
Sec. 203.50 Definitions.
Terms used in this part have the following meaning:
Field means an area consisting of a single reservoir or multiple
reservoirs all grouped on, or related to, the same general geological
structural feature and/or stratigraphic trapping condition. There may
be two or more reservoirs in a field that are separated vertically by
intervening impervious strata, or laterally by local geologic barriers,
or both.
Pre-enactment deep-water lease (PDWL) means an Outer Continental
Shelf (OCS) lease issued as a result of a lease sale held before
November 28, 1995. The lease must be in a water depth of at least 200
meters and in the Gulf of Mexico west of 87 degrees, 30 minutes West
longitude.
Project to significantly expand production (PSEP) means a project
proposed in an approved Supplemental Development Operations
Coordination Document (DOCD) that will result in an increase in
ultimate recovery of resources from the field and that involves a
substantial capital investment (e.g., the addition of a fixed-leg
platform, subsea template and manifold, tension-leg platform, multiple
well projects). The project must be on a PDWL.
Sunk costs means costs (as specified in Sec. 203.55) of
exploration, development, and production incurred after the date of
first discovery on the field and prior to the date of application for
royalty relief. Sunk costs also include the costs of the discovery well
qualified as producible under 30 CFR 250.11.
Sec. 203.51 What is MMS's authority to grant royalty relief?
Under the OCS Lands Act, 43 U.S.C. 1337, as amended by the OCS Deep
Water Royalty Relief Act, Public Law 104-58, MMS may grant three types
of royalty relief listed in this section.
(a) Under 43 U.S.C. 1337(a)(3)(A), MMS may reduce, suspend, or
eliminate the royalty specified for any producing OCS lease to promote
increased production. If your OCS lease has inadequate revenues to
sustain production or if you are proposing a project to expand
production that would be uneconomic without royalty relief, MMS may
grant royalty relief as specified in these regulations at Sec. 203.52
(Net Revenue Share Royalty Relief).
(b) Under 43 U.S.C. 1337(a)(3)(B), MMS may grant royalty reductions
or suspensions to promote development,
[[Page 27275]]
increase production, or encourage production of marginal resources on
producing or non-producing leases in the Gulf of Mexico, west of 87
degrees, 30 minutes West longitude. Section 203.54 is reserved for the
regulations to implement this provision.
(c) Under 43 U.S.C. 1337(a)(3)(C), if your PDWL is on a field that
did not produce before November 28, 1995, or if you have a PDWL where
you propose a PSEP, MMS may suspend royalties for volumes of new
production which would be uneconomic without royalty relief as
specified in these regulations in Sec. 203.53 (Royalty relief for
certain deep-water leases in the Gulf of Mexico).
Sec. 203.52 Net revenue share royalty relief.
(a) How do I apply for net revenue share (NRS) royalty relief?
This section explains how to obtain royalty relief under 43 U.S.C.
1337(a)(3)(A) if your lease has inadequate revenues to sustain
production or if you are proposing a project to expand production that
would be uneconomic without royalty relief. To apply for relief, submit
a complete application to the appropriate MMS Regional Director in
accordance with this section and the applicable guidelines in
Sec. 203.52(b) and Sec. 203.55. An application fee in accordance with
Sec. 203.56 must accompany the application.
(b) What do I need to include in my application?
(1) A complete application for royalty relief must include an
original and two copies of:
(i) Administrative Information and Relief Justification, and
(ii) Net Revenue Share Economic Viability Report.
(2) If you are proposing a project to expand production that would
be uneconomic without royalty relief, your application must also
include two copies (one set of digital information) of:
(i) Geologic and Geophysical Report;
(ii) Production Report; and
(iii) Engineering Report.
(3) Section 203.55 describes the reports required for the complete
application. The appropriate regional office will provide specific
guidance on the format for the required reports.
(c) What are the NRS royalty relief approval criteria?
(1) MMS may grant your request for royalty relief only if it
concludes that royalty relief will increase the ultimate recovery of
hydrocarbons by extending lease production for at least one year.
However, if you are proposing a project to expand production, MMS will
approve your request for royalty relief only if the proposed project
would be uneconomic without royalty relief.
(2) If you have a lease with inadequate revenues to sustain
production, MMS may grant your request for royalty relief only if it
concludes that:
(i) royalties paid to MMS over the most recent 12-month period
exceed 75 percent of net revenues; and
(ii) royalties are projected to take an increasing share of net
revenues over the next 12 months.
(d) What royalty relief will MMS grant?
(1) Except as provided in paragraph (d)(2)of this section, if you
meet the royalty relief criteria of this section, MMS may offer to
modify the royalty terms of your lease to a NRS. The percentage of the
net revenue due to MMS will be established in the MMS NRS guidelines
available in the appropriate Regional Office.
(2) If you are proposing a project to expand production but no
amount of royalty relief would make the project economic, MMS will deny
the request for royalty relief.
Sec. 203.53 Royalty relief for certain deep-water leases in the Gulf
of Mexico.
(a) Who may apply for deep-water royalty relief?
This section explains how to obtain royalty relief under 43 U.S.C.
1337(a)(3)(C). You may apply for royalty relief if you are a lessee of
a PDWL or a unit that contains one or more PDWL's, subject to the
limitation in paragraph (b)(3) of this section. You may apply for
relief if:
(1) your lease or unit is part of a field from which no royalties
were due on production, other than test production, prior to November
28, 1995; or
(2) you are proposing a PSEP.
(b) How do I apply for deep-water royalty relief?
(1) You must submit a complete application to the MMS Regional
Director of the Gulf of Mexico OCS Region. An application fee in
accordance with Sec. 203.56 must accompany the application.
(2) A complete application includes an original and two copies (one
set of digital information) of:
(i) Administrative Information and Relief Justification;
(ii) Deep-Water Royalty Relief Economic Viability Report;
(iii) Deep-Water Royalty Relief Cost Report;
(iv) Geologic and Geophysical Report;
(v) Production Report; and
(vi) Engineering Report.
Section 203.55 describes what these reports must include. The Gulf
of Mexico Regional Office will provide specific guidance on the format
for the required reports.
(3) For a royalty suspension on production from fields from which
no royalties were due on production, other than test production, before
November 28, 1995:
(i) Except as provided in paragraph (b)(3)(iii) of this section,
MMS will accept only one joint application for all leases that are part
of the field on the date of application. The Regional Director
maintains a list of all leases in each discovered field.
(ii) If a lessee does not want to share proprietary data with other
lessees on the field, that lessee may submit separately to MMS the
proprietary geological or geophysical data that is a necessary part of
the joint application. The application is not complete until MMS
receives all the required information for each lease on the field. In
explaining its assumptions and reasons for its determinations under
this section, MMS will not disclose proprietary data.
(iii) MMS will waive the joint application requirement if the
applicant(s) shows good cause for the waiver. The applicant also must
demonstrate that it made a good faith effort to obtain the
participation of all lessees in the field. A lease that is part of the
field on the date of application but that is not included in the
application because its lessee(s) fails or refuses to participate is
not eligible for the royalty relief for the field that is the subject
of the application. However, that lessee still may apply for other
royalty relief under this section.
(iv) With the exceptions listed below, the lessees on a field may
submit only one complete application for royalty relief during the life
of the field. However, lessees may submit another application if:
(A) They are eligible to apply for a redetermination under
Sec. 203.53(d)(1);
(B) MMS has withdrawn approval of a previously granted royalty
suspension under Sec. 203.53(e);
(C) they apply for royalty relief for a PSEP; or
(D) they withdraw the application before MMS deems it complete.
(c) How will MMS evaluate an application?
(1)(i) MMS will determine within 20 working days if your
application for royalty relief is complete. If your application is
incomplete, MMS will provide you with an explanation of what it needs
to become complete. If you withdraw your application after MMS has
deemed it complete, you may only reapply under the redetermination
provision of Sec. 203.53(d).
(ii) When MMS determines that your application is complete, MMS
will
[[Page 27276]]
evaluate the application within 180 days. MMS may extend the 180-day
evaluation period for an additional 30 days, if necessary, to complete
the evaluation. If you agree, MMS also may extend the 180-day period
for more than 30 days.
(iii) If MMS must audit sunk costs to evaluate your application,
MMS may request that the 180-day evaluation period be tolled from the
time you receive notice from MMS until you provide the records
necessary to conduct the audit.
(iv) If MMS determines during the evaluation period that it cannot
evaluate your application because:
(A) vital information is missing;
(B) the data and information provided in support of the application
are inconclusive; or
(C) of any other valid reason;
MMS may request that the 180-day evaluation period be tolled from
the time you receive notice from MMS until you provide needed data,
explanations, or revisions.
(2)(i) If your application is for a suspension of royalties on
production from a field from which no royalties were due on production,
other than test production, before November 28, 1995, MMS will
determine if development of the field is economic without royalty
relief. MMS will include your sunk costs in making this determination.
If MMS determines that development of the field would be economic
without relief, MMS will deny your request for a royalty suspension.
(ii) For fields that did produce, other than test production,
before the date of application, MMS will not include your sunk costs
when it determines if development of the field is economic without
royalty relief. If MMS determines that development of the field would
be economic without relief, MMS will deny your request for a royalty
suspension.
(iii) If MMS determines for a field subject to either paragraph
(c)(2) (i) or (ii) of this section that development of the field would
not be economic without a royalty suspension, and that a royalty
suspension could make the project economic, MMS will determine the size
of the royalty suspension volume necessary to make the field
economically viable. MMS will determine your royalty suspension volume
subject to the minimum royalty suspension volumes specified in
paragraph (h)(1)(i) of this section. MMS will not include sunk costs
when it makes this determination.
(iv) If no amount of royalty suspension would make the field
economic, MMS will deny your request for royalty relief.
(3)(i) If your application for royalty relief is for a PSEP, MMS
will determine if the proposed project is economic without royalty
relief. If it is economic, MMS will deny your request for royalty
relief.
(ii) If MMS determines that development of the project would not be
economic without royalty relief, MMS will determine the royalty
suspension volume necessary to make the project economically viable.
(iii) If no amount of royalty suspension volume would make the
project economic, MMS will deny your request for royalty relief.
(iv) MMS will not include sunk costs in evaluating applications for
royalty relief for a PSEP.
(4) If MMS approves your application for royalty relief, you must
submit a pre-production report 60 days before the planned start of
production which is subject to the royalty suspension volume, as
specified at Sec. 203.55.
(d) When will MMS reconsider its determination?
(1) You may request a redetermination of either a denial of an
application or the size of the royalty suspension volume granted in an
approved application. However, you may request a redetermination only
if you have not started producing hydrocarbons subject to the royalty
suspension and one of the following situations occurs:
(i) You have significant new geologic or geophysical data that did
not exist at the time of the previous application and that causes you
to change your estimates of gross resource size, quality, or projected
flow rates. Examples of new data include results from drilling new
wells or obtaining new three-dimensional seismic data and information.
Reinterpretation of existing data is not significant new data. The
change in resource information must be sufficient to materially affect
the results of the previous determination.
(ii) Prices for oil or gas have decreased at least 25 percent,
determined as follows:
(A) Calculate the arithmetic average of daily closing prices for
light sweet crude oil and for natural gas on the New York Mercantile
Exchange (NYMEX) for the most recent 12 months.
(B) Calculate the weighted average prices for oil and gas
calculated under (d)(1)(ii)(A) of this section using the volumes of oil
and gas identified in the most likely scenario (required under
Sec. 203.55) described in your previous complete application for
royalty relief.
(C) Perform the same calculations as required in paragraphs
(d)(1)(ii)(A) and (B) of this section, but use the arithmetic average
of daily closing prices for light sweet crude oil and for natural gas
on the NYMEX for the 12-month period preceding the date of your
previous complete application.
(D) If the weighted average price calculated under paragraph
(d)(1)(ii)(B) of this section is at least 25 percent less than the
weighted average price calculated under paragraph (d)(1)(ii)(C) of this
section, then you satisfy the requirements of this paragraph; or
(iii) Prior to starting construction of your development/production
system, you have revised your estimated development costs, and they are
at least 120 percent of the eligible development costs associated with
the most likely scenario described in your previous complete
application.
(2)(i) Your request for a redetermination must include a new
complete application, as discussed in paragraph (b) of this section and
Sec. 203.55. MMS will evaluate your application for a redetermination
under paragraph (c) of this section.
(ii) MMS will determine within 20 working days if your application
for a redetermination is complete. If your application is incomplete,
MMS will provide you with an explanation of what it needs to become
complete. If MMS later determines that your application does not meet
any of the criteria under (d)(1)(i),(ii), or (iii) of this section, it
will consider your application incomplete.
(iii) When MMS determines that your application is complete, MMS
will evaluate the application within 120 days. MMS may extend the 120-
day evaluation period for an additional 30 days if necessary to
complete the evaluation. If you agree, MMS also may extend the 120-day
period for more than 30 days.
(iv) If MMS must audit sunk costs to evaluate your application, MMS
may request that the 120-day evaluation period be tolled from the time
you receive notice from MMS until you provide the records necessary to
conduct the audit.
(v) If MMS determines during the evaluation period that it cannot
evaluate your application because:
(A) Vital information is missing;
(B) The data and information provided in support of the application
are inconclusive; or
(C) Of any other valid reason; MMS may request that the 120-day
evaluation period be tolled from the time you receive notice from MMS
until you provide the needed data, explanations, or revisions.
(e) When may MMS withdraw approval of an application for royalty
relief?
[[Page 27277]]
MMS will withdraw approval of your application for royalty relief
if:
(1) You change the type of development system proposed in your
approved application (e.g., change from stand-alone to tieback or vice
versa);
(2) You fail to start construction of the approved development/
production system within two years of the date MMS approved your
application--notwithstanding any suspension granted under Sec. 250.10
of this chapter; or
(3)(i) The actual development costs reported in your pre-production
report (paragraph (c)(4) of this section) are less than 80 percent of
the development costs from the date of application to the date of the
pre-production report associated with the most likely scenario
described in your approved application. In this case, you may retain 50
percent of the amount of the royalty suspension volume that MMS
previously granted.
(ii) If MMS granted you a royalty suspension volume after you
requested a redetermination under paragraph (d)(1)(iii) of this
section, MMS may withdraw approval of your application for a royalty
suspension if your actual development costs in your pre-production
report (paragraph (c)(4) of this section) are less than 90 percent of
the eligible development costs from the date of application to the date
of the pre-production report associated with the most likely scenario
described in your approved application.
(iii) If MMS discovers that the actual development costs are less
than the amounts specified in paragraphs (e)(3)(i) or (ii) of this
section, MMS will withdraw retroactively its approval of the royalty
suspension volume. You will owe royalties and interest on all
production that was subject to the previously granted royalty
suspension.
(4) If MMS determines that you provided false historical or
intentionally inaccurate information that was material to MMS in
granting royalty relief under this section, MMS will rescind its
approval as of the date of the approval. You must pay royalties and
late payment interest determined under 30 U.S.C. 1721 and Sec. 218.54
of this chapter on all volumes for which you used the royalty
suspension. You also may be subject to penalties under other provisions
of law.
(5) If MMS withdraws its approval of a royalty suspension for any
of the reasons in paragraphs (e)(1), (2) or (3) of this section, you
may apply again for relief under paragraph (b) of this section and
Sec. 203.55.
(f) What happens if MMS fails to accept or reject my application in
a timely manner?
(1) For applications for fields from which no royalties were due on
production, other than test production, prior to November 28, 1995, if
MMS does not make its determinations on your application within the
time period specified in paragraph (c)(1) or (d)(1) of this section,
including any applicable extension, you will receive the minimum
royalty suspension volumes specified in paragraph (h)(1)(i) of this
section.
(2) For PSEP applications, if MMS does not make its determinations
on your application within the time period specified in paragraph
(c)(1) or (d)(2) of this section, including any applicable extension,
you will receive a royalty suspension for the first year of the
project's production.
(g) How do I appeal an MMS decision under 203.53?
(1) MMS' decision whether to grant deep-water royalty relief and
its decision on the size of the royalty suspension volume are final
agency actions. You have no right to further administrative review,
including Secretarial review, of these decisions. The MMS's decisions
are judicially reviewable under section 10(a) of the Administrative
Procedure Act (5 U.S.C. 702) only if you file an action within 30 days
of the date you receive MMS's decision. MMS's will send its decision to
you by certified mail, return receipt requested.
(2)(i) Except as provided in paragraph (g)(2)(ii) of this section,
MMS decisions on designating a lease as part of a field are final
agency actions.
(ii) If MMS designates your lease as part of a field, within 15
days of such designation you may file a written request with the
Director for reconsideration accompanied by a statement of reasons. The
Director will respond in writing either affirming or reversing the
decision. The Director's decision is the final decision of the
Department.
(h) How does a royalty suspension volume apply to your production?
This paragraph explains how the royalty suspension volumes in
section 302 of the OCS Deep Water Royalty Relief Act, apply to
production from PDWL's. For purposes of this paragraph, any volumes of
production that are not royalty bearing under the lease or the
regulations in this chapter do not count against royalty suspension
volumes. Also, for purposes of this paragraph, production includes
volumes allocated to a lease under an approved unit agreement. The
following provisions apply only to those leases for which the lessee(s)
applies for and receives a royalty suspension volume under this
section.
(1) For fields from which no royalties were due on production,
other than test production, prior to November 28, 1995:
(i) The water depth of a lease is based on the water depth
delineations in the ``Royalty Suspension Areas Map'' in effect at the
time of your application. If the application for the field includes
leases in different water depth categories, the minimum royalty volume
associated with the deepest lease applies. The minimum royalty
suspension volumes are: (A) 17.5 million barrels of oil equivalent
(MMBOE) in 200 to 400 meters of water;
(B) 52.5 MMBOE in 400 to 800 meters of water; and
(C) 87.5 MMBOE in more than 800 meters of water.
(ii) If your PDWL is the only lease on the field, you do not owe
royalty on the production from your lease up to the royalty suspension
volume MMS granted.
(iii) If a field consists of more than one PDWL, payment of
royalties on the PDWLs' production is suspended until their cumulative
production equals the royalty suspension volume MMS granted. The
royalty suspension volume for each lease equals each lease's actual
production (or production allocated under an approved unit agreement)
until cumulative production equals the field's royalty suspension
volume.
(iv) If a PDWL or an eligible lease, as defined in Sec. 260.102 of
this chapter, is added to a field for which MMS has granted a royalty
suspension volume under this section, the field's royalty suspension
volume will not change. The additional lease may receive a royalty
suspension volume only to the extent of its production from the field
before the cumulative production from the field equals the royalty
suspension volume MMS approved. However, before your PDWL may
participate in the royalty suspension volume already granted to the
field, you must apply for royalty relief using an abbreviated form
available at the Gulf of Mexico OCS Regional Office.
(v) If your PDWL is part of a field that already has a royalty
suspension volume for eligible leases under Sec. 260.110 of this
chapter, and you apply and qualify for royalty relief under this
section, all the leases in the field share a single royalty suspension
volume that is the greater of the volume established for the eligible
leases under Sec. 260.110 of this chapter or the volume MMS determines
under this section.
(2) For a PSEP:
(i) If your PDWL is the only lease included in the project, you do
not owe
[[Page 27278]]
royalty on the incremental production from the project up to the
royalty suspension volume MMS granted.
(ii) If the project includes more than one lease, the royalty
suspension volume for each lease equals each lease's actual incremental
production from the project (or production allocated under an approved
unit agreement) until cumulative incremental production for all leases
in the project equals the project's royalty suspension volume.
(3) Your lease may receive more than one royalty suspension volume.
You may apply for royalty relief under this section for each field that
includes your lease, and each field would receive a separate royalty
suspension volume if it meets the evaluation criteria of paragraph
203.53(c). You may also apply for relief for a PSEP, even if MMS has
already granted a royalty suspension volume to the field that
encompasses that project.
(4) You may receive a royalty suspension volume only if your entire
lease is west of 87 degrees, 30 minutes West longitude. A field that
lies on both sides of this meridian will receive a royalty suspension
volume only for those leases lying entirely west of the meridian.
(5) You must measure natural gas production subject to the royalty
suspension volume as follows: 5.62 thousand cubic feet of natural gas
equals one barrel of oil equivalent, as measured at 15.025 psi, 60
degrees Fahrenheit, and fully saturated.
(6)(i) If in the previous calendar year the arithmetic average of
the daily closing prices on the NYMEX for light sweet crude oil exceeds
$28.00 per barrel, as adjusted in paragraph (h)(8) of this section, the
royalty relief authorized in this section is suspended and any
production of oil is subject to royalties at the lease stipulated
royalty rate. However, this production counts as part of the
established royalty suspension volume. By January 31 of the current
calendar year, you must pay the royalty due plus interest, in
accordance with 30 U.S.C 1721 and Sec. 218.54 of this chapter, on any
volume of oil from the previous year for which you did not pay royalty.
(ii) If the arithmetic average of the daily closing prices on the
NYMEX for light sweet crude oil from the previous calendar year exceeds
$28.00 per barrel, as adjusted in paragraph (h)(8) of this section, you
must pay royalties on all your oil production in the current year. If
the arithmetic average of the daily closing prices on the NYMEX for
light sweet crude oil for the current calendar year is $28.00 per
barrel or less, as adjusted in paragraph (h)(8) of this section, you
are entitled to a refund or credit, with interest, of royalties paid
that year on any royalty suspension volume for oil production. You must
follow MMS regulations at part 230 of this chapter for receiving
refunds or credits.
(7)(i) If in the previous calendar year the arithmetic average of
the daily closing prices on the NYMEX for natural gas exceeds $3.50 per
million British thermal units, as adjusted in paragraph (h)(8) of this
section, the royalty relief authorized in this section is suspended and
any production of natural gas is subject to royalties at the lease
stipulated royalty rate. However, this production counts as part of the
established royalty suspension volume. By January 31 of the current
calendar year, you must pay the royalty due plus interest, in
accordance with 30 U.S.C 1721 and Sec. 218.54 of this chapter, on any
volume of natural gas from the previous year for which you did not pay
royalty.
(ii) If the arithmetic average of the daily closing prices on the
NYMEX for natural gas for the previous calendar year exceeds $3.50 per
million British thermal units, as adjusted in paragraph (h)(8) of this
section, you must pay royalties on all your natural gas production in
the current year. If the arithmetic average of the daily closing prices
on the NYMEX for natural gas for the current calendar year is $3.50 per
million British thermal units or less, as adjusted in paragraph (h)(8)
of this section, you are entitled to a refund or credit, with interest,
of royalties paid that year on any royalty suspension volume for
natural gas production. You must follow MMS regulations at part 230 of
this chapter for receiving refunds or credits.
(8) Change the prices referred to in paragraphs (h)(6) and (7) of
this section during each calendar year after 1994 by the percentage, if
any, by which the implicit price deflator for the gross domestic
product changed during the preceding calendar year.
(9) A royalty suspension volume will continue until the end of the
month in which the cumulative production from the field or PSEP reaches
the established royalty suspension volume.
Sec. 203.54 [Reserved]
Sec. 203.55 What information is required for the net revenue share
royalty relief and deep-water royalty relief application supplemental
reports?
(a) You must submit the applicable supplemental reports listed
below.
(1) Administrative information and relief justification.
All royalty relief applications must contain this report, which
must include:
(i) Field name;
(ii) Serial number of leases in the field, names of the lease the
titleholders of record, the lease operators, and the identification of
whether any lease is part of a unit;
(iii) The API number and location of each well that has been
drilled on the field/lease or project;
(iv) Location of any new wells proposed under the terms of the
application;
(v) Description of field/lease history;
(vi) Statement that the reserves would not be produced without
relief;
(vii) Full information as to whether royalties or payment out of
production will be paid to anyone other than the United States, the
amount to be paid, and the amount of reduction in such payment if
relief is granted;
(viii) Amount of relief needed to make the lease (NRS royalty
relief), field (deep-water royalty relief), or project economic;
(ix) Confirmation that MMS approved a DOCD or supplemental DOCD
(NRS expansion of production and deep-water royalty relief application
only); and
(x) A narrative description of the development activities
associated with the proposed capital investments and an explanation of
proposed timing of the activities and the effect on production (NRS
expansion of production and deep-water royalty relief application
only).
(2) Net revenue share economic viability report.
NRS royalty relief applications must contain this report. This
report must present cash flow data, including 36 months of historical
data and 12 months of projected data, for the following items:
(i) Lease production subject to royalty;
(ii) Total revenues;
(iii) Royalty payments out of production;
(iv) Operating costs;
(v) Transportation and processing costs;
(vi) Capital expenditures (if applicable); and
(vii) Well drilling costs (if applicable).
(3) Deep-water royalty relief economic viability report.
This report should demonstrate that the project appears economic
without royalties and sunk costs using the model provided by MMS. A
company may provide supplemental information, including its own model
and model results. This report must include all of the items listed
below.
(i) Economic assumptions provided by MMS:
[[Page 27279]]
(A) Starting oil and gas prices;
(B) Real price growth;
(C) Real cost growth or decline rate, if any;
(D) Base year;
(E) Range of discount rates; and
(F) Tax rate (for use in determining after-tax sunk costs).
(ii) Projected cash flow analysis (from application date using
annual totals and constant dollar values). All costs, gross production,
and scheduling must be consistent with the data in the reserve,
engineering, production, and cost reports, and the three scenarios
(conservative, most likely, optimistic; provided in the various reports
must be consistent with each other and the proposed development system.
The analysis must show:
(A) Oil/gas production;
(B) Total revenues;
(C) Capital expenditures;
(D) Operating costs;
(E) Transportation costs; and
(F) Before tax net cash flow.
(iii) Discounted values.
(A) Discount rate used (selected from within range provided in MMS
guidelines).
(B) Before tax net present value without royalties, overrides, sunk
costs, and ineligible costs.
(4) Deep-water royalty relief cost report.
Deep-water royalty relief applications must contain this report.
Report all actual and projected costs listed in this paragraph in the
format detailed in the guidelines.
(i) Sunk costs. This includes all eligible costs, in current
dollars and for which documentation is provided, actually incurred
subsequent to and including the first discovery well on the field. Sunk
costs count on an after-tax, expensed basis, using nominal (current
dollar) amounts.
(ii) Delineation and development costs, based on actual costs or
current authorization for expenditures. These costs include:
(A) Platform well drilling costs and average depth;
(B) Platform well completion costs;
(C) Subsea well drilling costs and average depth;
(D) Subsea well completion costs;
(E) Production system (platform) costs; and
(F) Flowline fabrication and installation costs.
(iii) Production costs, based on historical costs, engineering
estimates, or analogous projects. These costs include:
(A) Operating costs;
(B) Equipment costs; and
(c) Existing royalty overrides (MMS will not use the royalty
overrides in its evaluation).
(iv) Transportation costs, based on historical costs, engineering
estimates, or analogous projects. These costs include:
(A) Oil and/or gas tariffs from pipeline or tankerage;
(B) Trunkline/tieback line costs; and
(C) Gas plant processing costs for NGL's.
(v) Ineligible costs. These costs include:
(A) Acquisition costs;
(B) Application fees;
(C) Prospective exploration well costs;
(D) Costs associated with obligations existing prior to the
application; and
(E) Other ineligible costs listed in Sec. 203.55(b).
(vi) Uncertainty. You must provide a cost scenario consistent with
each one of the three field development and production profiles
(conservative, most likely, optimistic). Express costs in constant real
dollar terms for the base year. You may also express the uncertainty of
each cost scenario as a minimum and maximum percentage of the base
value.
(vii) Scheduling. Provide costs on an annual basis (in real
dollars) for each of the categories in paragraphs (a)(4)(i) through
(a)(4)(vi) of this section.
(viii) Abandonment. Provide the costs to plug and abandon wells and
to remove production systems for which costs have not been incurred at
the time of application.
(ix) Pre-production report. You must file a pre-production report
60 days before the start of the production subject to an approved
royalty suspension. For each of the cost categories in the deep-water
royalty relief cost report, you must include actual costs up to the
date when the pre-production report is submitted. Retain supporting
records for these costs and make them available to MMS upon request.
(5) Geologic and geophysical report.
Deep-water royalty relief and NRS production expansion proposal
applications must contain this report. This report must include all of
the items listed below.
(i) Seismic data:
(A) Non-interpreted 2D/3D survey lines (8mm tape) (SEGY format or
IES format);
(B) Interpreted 2D/3D seismic survey lines identifying all known
and prospective pay horizons, wells, and fault cuts;
(C) Digital velocity surveys in format of LTL 10/1/90;
(D) Plat map of ``shot points;'' and
(E) ``Time slices'' of potential horizons.
(ii) Well data.
(A) Hard copies of all well logs.
(1) One-inch electric log must show:
(i) pay zones and pay counts; and
(ii) lithologic and paleo correlation markers at least every 500
ft.
(2) One-inch type log must show missing sections from other logs
where faulting occurs.
(3) Five-inch electric log must show:
(i) pay zones and pay counts; and
(ii) labeled points used in establishing Ro and Rt.
(4) Five-inch porosity logs must show:
(i) pay zones and pay counts; and
(ii) labeled points used in establishing reservoir porosity or
labeled points showing values used in calculating reservoir porosity
such as bulky density or transit time.
(B) Digital copies of all well logs spudded before December 1,
1995.
(C) Core data, if available.
(D) Well correlation sections.
(E) Pressure data.
(F) Production test results.
(G) PVT analysis, if available.
(iii) Map interpretations. For each reservoir included in the
application, you must submit:
(A) Structure maps and top and base of sand maps showing well and
seismic shot point locations;
(B) Isopach maps for net sand, net oil, net gas, all with well
locations;
(C) Maps indicating well surface and bottom hole locations,
location of development facilities, and shot points; and
(D) Identification of reservoirs not contemplated for development.
(iv) Reservoir data. For each reservoir included in the
application, you must identify and submit:
(A) Oil and/or gas reserve/resource distribution;
(B) Probability of reservoir occurrence with hydrocarbons;
(C) Probability the hydrocarbon in the reservoir is oil, and the
probability it is gas;
(D) Distributions for the parameters used to estimate the
resources, i.e. acre, net thickness, recovery, porosity, salt water
saturation, formation volume factor;
(E) Aggregated BOE reserve/resource for the field;
(F) Gas/oil ratio distribution for each reservoir;
(G) Yield distribution for each gas reservoir;
(H) Description of anticipated crude quality (e.g., gravity); and
(I) Points on the aggregated reserve/resource distribution used for
the determination of the three (conservative, most likely, optimistic)
production profiles specified in the production report.
[[Page 27280]]
(6) Production report. Deep-water royalty relief and NRS production
expansion proposal applications must contain this report, which must
include all of the items listed below.
(i) Production profile. Submit actual and projected (BOE)
production by year for each of the following products: oil, condensate,
gas, and associated gas.
(ii) Uncertainty (deep-water royalty relief only). Submit three
production profiles as described in paragraph (a)(6)(i) of this
section. Each one must be consistent with a specific point on the
aggregated reserve/resource distribution and must represent a
conservative, most likely, and an optimistic case.
(iii) Production drive mechanisms for each reservoir.
(iv) Quality adjustments to prices for gravity, sulfur, etc.
(7) Engineering report.
Deep-water royalty relief and NRS production expansion proposal
applications must contain this report. However, NRS expanded production
applications should submit this information only as it relates to the
planned development. This report must include all of the items listed
below.
(i) Development concept:
(A) Tension leg platform, fixed, floater type, subsea tieback,
etc.; and
(B) Construction schedule.
(ii) Planned wells:
(A) Number of wells planned;
(B) Type of well (platform, subsea, vertical, deviated,
horizontal);
(C) Well depth;
(D) Drilling schedule;
(E) Completion description (single, dual, horizontal, etc.); and
(F) Completion schedule.
(iii) Production system equipment:
(A) Production capacity for oil and gas and a description of its
limiting component(s);
(B) Unusual problems (low gravity, high sulfur content, etc.);
(C) Subsea structures;
(D) Flowlines; and
(E) Production system installation schedule.
(iv) Multi-phase development plans;
(A) Conceptual basis for developing in phases and goals/milestones
required for commencing subsequent phases; and
(B) Justification for the exclusion of reservoirs not contemplated
for development.
(v) Uncertainty. Submit schedules for development consistent with
each of the three field production profiles (conservative, most likely,
optimistic) provided in the production report.
(b) Ineligible costs. MMS will not include certain costs in making
its royalty relief determinations. These include, but are not limited
to:
(1) Costs incurred before first discovery on the field;
(2) Cash bonuses;
(3) Royalty relief application fees;
(4) Lease rentals, royalties, and net profit share and net revenue
share payments;
(5) Legal expenses;
(6) Damages and losses;
(7) Taxes;
(8) Interest or finance charges;
(9) Fines or penalties;
(10) Designated well costs, including prospective exploration and
delineation costs; and
(11) Costs associated with prior existing obligations (e.g.,
royalty overrides or other forms of payment for acquiring a financial
position in a lease, expenditures for plugging wells and removal and
abandonment of facilities existing on the date of the application).
(c) The applicant or the applicant's authorized representative must
certify that all information submitted in an application or a pre-
production report is accurate and complete. The application or pre-
production report must be accompanied by a report prepared by an
independent certified public accountant (CPA) expressing an unqualified
opinion on the accuracy of the actual historical financial information
presented in the application or pre-production report and that the
presentation of data and information conforms to the MMS guidelines.
The applicant will make the independent CPA available to the MMS to
respond to questions which may arise regarding the evaluation of the
historical information. This requirement does not limit the MMS's
ability to conduct further review of the applicant's records to support
the historical financial information included in the application.
Sec. 203.56 Recovery of application processing costs.
When you submit an application for royalty relief, you must include
a payment to reimburse MMS for the costs it incurs in processing your
application. The MMS will establish in a Notice to Lessees a schedule
that will specify the fees that must be paid for each of the different
types of royalty relief applications. Regional Directors will
periodically update the fee schedule to reflect changes in MMS costs as
well as to provide other information necessary for the administration
of our royalty relief program.
[FR Doc. 96-13626 Filed 5-30-96; 8:45 am]
BILLING CODE 4310-MR-P
Complete official Federal Register PDF
FR Doc. 96-13618 Idaho-Eastern Oregon Onions; Assessment Rate
[Federal Register Volume 61, Number 106 (Friday, May 31, 1996)]
[Rules and Regulations]
[Pages 27250-27251]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13618]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
7 CFR Part 958
[Docket No. FV96-958-2IFR]
Idaho-Eastern Oregon Onions; Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This interim final rule establishes an assessment rate for the
Idaho-Eastern Oregon Onion Committee (Committee) under Marketing Order
No. 958 for the 1996-97 and subsequent fiscal periods. The Committee is
responsible for local administration of the marketing order which
regulates the handling of onions grown in designated counties in Idaho,
and Malheur County, Oregon.
Authorization to assess onion handlers enables the Committee to
incur expenses that are reasonable and necessary to administer the
program.
DATES: Effective on July 1, 1996. Comments received by July 1, 1996,
will be considered prior to issuance of a final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent in triplicate to the Docket
Clerk, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, room
2523-S, Washington, DC 20090-6456, FAX 202-720-5698. Comments should
reference the docket number and the date and page number of this issue
of the Federal Register and will be available for public inspection in
the Office of the Docket Clerk during regular business hours.
FOR FURTHER INFORMATION CONTACT: Martha Sue Clark, Marketing Order
Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.
Box 96456, room 2523-S, Washington, DC 20090-6456, telephone 202-720-
9918, FAX 202-720-5698, or Robert J. Curry, Northwest Marketing Field
Office, Fruit and Vegetable Division, AMS, USDA, Green-Wyatt Federal
Building, room 369-1220 Southwest Third Avenue, Portland, OR 97204,
telephone 503-326-2724, FAX 503-326-7440.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement No. 130 and Order No. 958, both as amended (7 CFR part 958),
regulating the handling of onions grown in designated counties in
Idaho, and Malheur County, Oregon. The order is effective under the
Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-
674), hereinafter referred to as the ``Act.''
The Department of Agriculture (Department) is issuing this rule in
conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. Under the marketing order now in effect, Idaho-Eastern
Oregon onion handlers are subject to assessments. Funds to administer
the order are derived from such assessments. It is intended that the
assessment rate as issued herein will be applicable to all assessable
onions beginning July 1, 1996, and continuing until amended, suspended,
or terminated. This rule will not preempt any State or local laws,
regulations, or policies, unless they present an irreconcilable
conflict with this rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with the Secretary a
petition stating that the order, any provision of the order, or any
obligation imposed in connection with the order is not in accordance
with law and request a modification of the order or to be exempted
therefrom. Such handler is afforded the opportunity for a hearing on
the petition. After the hearing the Secretary would rule on the
petition. The Act provides that the district court of the United States
in any district in which the handler is an inhabitant, or has his or
her principal place of business, has jurisdiction to review the
Secretary's ruling on the petition, provided an action is filed not
later than 20 days after the date of the entry of the ruling.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this rule on small entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 550 producers of Idaho-Eastern Oregon
onions in the production area and approximately 34 handlers subject to
regulation under the marketing order. Small agricultural producers have
been defined by the Small Business Administration (13 CFR 121.601) as
those having annual receipts of less than $500,000. The majority of
Idaho-Eastern Oregon onion producers and handlers may be classified as
small entities.
The Idaho-Eastern Oregon onion marketing order provides authority
for the Committee, with the approval of the Department, to formulate an
annual budget of expenses and collect assessments from handlers to
administer the program. The members of the Committee are producers and
handlers of Idaho-Eastern Oregon onions. They are familiar with the
Committee's needs and with the costs of goods and services in their
local area and are thus in a position to formulate an appropriate
budget and assessment rate. The assessment rate is formulated and
discussed in a public meeting. Thus, all directly affected persons have
an opportunity to participate and provide input.
The Committee met on March 21, 1996, and unanimously recommended
1996-97 expenditures of $1,115,993 and an assessment rate of $0.10 per
hundredweight of onions. In comparison, last year's budgeted
expenditures were $1,111,447. The assessment rate of $0.10 is the same
as last year's established rate. Major expenditures recommended by the
Committee for the 1996-97 year include $10,000 for Committee expenses,
$123,593 for salary expenses, $62,400 for travel and office expenses,
$60,000 each for research and export, $725,000 for promotion, and
$75,000 for a contingency fund. Budgeted expenses for these items in
1995-96 were $10,000, $121,431, $61,600, $59,340, $60,000, $724,076,
and $75,000, respectively.
The assessment rate recommended by the Committee was derived by
dividing anticipated expenses by expected shipments of Idaho-Eastern
Oregon onions. Onion shipments for the year are estimated at 8,800,000
hundredweight, which should provide $880,000 in assessment income.
Income derived from handler assessments, along with funds from interest
income and the Committee's authorized reserve, will be adequate to
cover budgeted expenses. Funds remaining in the reserve at the end of
the 1995-96 fiscal period should be about $1,011,613. Funds in the
reserve will be kept within the maximum permitted by the order.
While this rule will impose some additional costs on handlers, the
costs
[[Page 27251]]
are in the form of uniform assessments on all handlers. Some of the
additional costs may be passed on to producers. However, these costs
will be offset by the benefits derived by the operation of the
marketing order. Therefore, the AMS has determined that this rule will
not have a significant economic impact on a substantial number of small
entities.
The assessment rate established in this rule will continue in
effect indefinitely unless modified, suspended, or terminated by the
Secretary upon recommendation and information submitted by the
Committee or other available information.
Although this assessment rate is effective for an indefinite
period, the Committee will continue to meet prior to or during each
fiscal period to recommend a budget of expenses and consider
recommendations for modification of the assessment rate. The dates and
times of Committee meetings are available from the Committee or the
Department. Committee meetings are open to the public and interested
persons may express their views at these meetings. The Department will
evaluate Committee recommendations and other available information to
determine whether modification of the assessment rate is needed.
Further rulemaking will be undertaken as necessary. The Committee's
1996-97 budget and those for subsequent fiscal periods will be reviewed
and, as appropriate, approved by the Department.
After consideration of all relevant material presented, including
the information and recommendation submitted by the Committee and other
available information, it is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good
cause that it is impracticable, unnecessary, and contrary to the public
interest to give preliminary notice prior to putting this rule into
effect, because: (1) the Committee needs to have sufficient funds to
pay its expenses which are incurred on a continuous basis; (2) the
1996-97 fiscal period begins on July 1, 1996, and the marketing order
requires that the rate of assessment for each fiscal period apply to
all assessable onions handled during such fiscal period; (3) handlers
are aware of this action which was unanimously recommended by the
Committee at a public meeting and is similar to other assessment rate
actions issued in past years; and (4) this interim final rule provides
a 30-day comment period, and all comments timely received will be
considered prior to finalization of this rule.
List of Subjects in 7 CFR Part 958
Marketing agreements, Onions, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 958 is
amended as follows:
PART 958--ONIONS GROWN IN CERTAIN DESIGNATED COUNTIES IN IDAHO, AND
MALHEUR COUNTY, OREGON
1. The authority citation for 7 CFR part 958 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. A new subpart--Assessment Rates and a new Sec. 958.240 are added
to read as follows:
Note: This section will appear in the Code of Federal
Regulations.
Subpart--Assessment Rates
Sec. 958.240 Assessment rate.
On and after July 1, 1996, an assessment rate of $0.10 per
hundredweight is established for Idaho-Eastern Oregon onions.
Dated: May 22, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-13618 Filed 5-30-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-13617 Southeastern Potatoes; Assessment Rate
[Federal Register Volume 61, Number 106 (Friday, May 31, 1996)]
[Rules and Regulations]
[Pages 27248-27250]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13617]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
7 CFR Part 953
[Docket No. FV96-953-1IFR]
Southeastern Potatoes; Assessment Rate
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This interim final rule establishes an assessment rate for the
Southeastern Potato Committee (Committee) under Marketing Order No. 953
for the 1996-97 and subsequent fiscal periods. The Committee is
responsible for local administration of the marketing order which
regulates the handling of Irish potatoes grown in two southeastern
States (Virginia and North Carolina). Authorization to assess potato
handlers enables the Committee to incur expenses that are reasonable
and necessary to administer the program.
DATES: Effective on June 1, 1996. Comments received by July 1, 1996,
will be considered prior to issuance of a final rule.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent in triplicate to the Docket
Clerk, Fruit and Vegetable Division, AMS, USDA, P.O. Box 96456, room
2523-S, Washington, DC 20090-6456, FAX 202-720-5698. Comments should
reference the docket number and the date and page number of this issue
of the Federal Register and will be available for public inspection in
the Office of the Docket Clerk during regular business hours.
FOR FURTHER INFORMATION CONTACT: Martha Sue Clark, Marketing Order
Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.
Box 96456, room 2523-S, Washington, DC 20090-6456, telephone 202-720-
9918, FAX 202-720-5698.
SUPPLEMENTARY INFORMATION: This rule is issued under Marketing
Agreement No. 104 and Order No. 953, both as amended (7 CFR part 953),
regulating the handling of Irish potatoes grown in two southeastern
States (Virginia and North Carolina), hereinafter referred to as the
``order.'' The order is effective under the Agricultural Marketing
Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter
referred to as the ``Act.''
The Department of Agriculture (Department) is issuing this rule in
conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. Under the marketing order now in effect, Virginia-North
Carolina potato handlers are subject to assessments. Funds to
administer the order are derived from such assessments. It is intended
that the assessment rate as issued herein will be applicable to all
assessable potatoes beginning June 1, 1996, and continuing until
amended, suspended, or terminated. This rule will not preempt any State
or local laws, regulations, or policies, unless they present an
irreconcilable conflict with this rule.
[[Page 27249]]
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with the Secretary a
petition stating that the order, any provision of the order, or any
obligation imposed in connection with the order is not in accordance
with law and request a modification of the order or to be exempted
therefrom. Such handler is afforded the opportunity for a hearing on
the petition. After the hearing the Secretary would rule on the
petition. The Act provides that the district court of the United States
in any district in which the handler is an inhabitant, or has his or
her principal place of business, has jurisdiction to review the
Secretary's ruling on the petition, provided an action is filed not
later than 20 days after the date of the entry of the ruling.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this rule on small entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and the rules issued thereunder, are unique in
that they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 150 producers of Southeastern potatoes in
the production area and approximately 60 handlers subject to regulation
under the marketing order. Small agricultural producers have been
defined by the Small Business Administration (13 CFR 121.601) as those
having annual receipts of less than $500,000, and small agricultural
service firms are defined as those whose annual receipts are less than
$5,000,000. The majority of Southeastern potato producers and handlers
may be classified as small entities.
The Southeastern potato marketing order provides authority for the
Committee, with the approval of the Department, to formulate an annual
budget of expenses and collect assessments from handlers to administer
the program. The members of the Committee are producers and handlers of
Southeastern potatoes. They are familiar with the Committee's needs and
with the costs for goods and services in their local area and are thus
in a position to formulate an appropriate budget and assessment rate.
The assessment rate is formulated and discussed in a public meeting.
Thus, all directly affected persons have an opportunity to participate
and provide input.
The Committee met on April 18, 1996, and unanimously recommended
1996-97 expenditures of $12,000, the same as last year, and an
assessment rate of $0.0075 per hundredweight. The assessment rate of
$0.0075 is $0.0025 higher than last year's established rate. The major
expenditures include $7,800 for the manager's and secretarial salaries
and $900 for travel expenses.
The assessment rate recommended by the Committee was based on last
year's shipments of 1,549,268 hundredweight of Southeastern potatoes,
which should provide $11,619.51 in assessment income. Income derived
from handler assessments, along with funds from the Committee's
authorized reserve, will be adequate to cover budgeted expenses. Funds
in the reserve at the beginning of the 1996-97 fiscal period are
estimated at $8,877. Funds in the reserve will be kept within the
maximum permitted by the order.
While this rule will impose some additional costs on handlers, the
costs are in the form of uniform assessments on all handlers. Some of
the additional costs may be passed on to producers. However, these
costs will be offset by the benefits derived by the operation of the
marketing order. Therefore, the AMS has determined that this rule will
not have a significant economic impact on a substantial number of small
entities.
The assessment rate established in this rule will continue in
effect indefinitely unless modified, suspended, or terminated by the
Secretary upon recommendation and information submitted by the
Committee or other available information.
Although this assessment rate is effective for an indefinite
period, the Committee will continue to meet prior to or during each
fiscal period to recommend a budget of expenses and consider
recommendations for modification of the assessment rate. The dates and
times of Committee meetings are available from the Committee or the
Department. Committee meetings are open to the public and interested
persons may express their views at these meetings. The Department will
evaluate Committee recommendations and other available information to
determine whether modification of the assessment rate is needed.
Further rulemaking will be undertaken as necessary. The Committee's
1996-97 budget and those for subsequent fiscal periods will be reviewed
and, as appropriate, approved by the Department.
After consideration of all relevant material presented, including
the information and recommendation submitted by the Committee and other
available information, it is hereby found that this rule, as
hereinafter set forth, will tend to effectuate the declared policy of
the Act.
Pursuant to 5 U.S.C. 553, it is also found and determined upon good
cause that it is impracticable, unnecessary, and contrary to the public
interest to give preliminary notice prior to putting this rule into
effect, and that good cause exists for not postponing the effective
date of this rule until 30 days after publication in the Federal
Register because: (1) The Committee needs to have sufficient funds to
pay its expenses which are incurred on a continuous basis; (2) the
1996-97 fiscal period begins on June 1, 1996, and the marketing order
requires that the rate of assessment for each fiscal period apply to
all assessable Irish potatoes handled during such fiscal period; (3)
handlers are aware of this action which was unanimously recommended by
the Committee at a public meeting and is similar to the assessment rate
action issued last year; and (4) this interim final rule provides a 30-
day comment period, and all comments timely received will be considered
prior to finalization of this rule.
List of Subjects in 7 CFR Part 953
Marketing agreements, Potatoes, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 953 is
amended as follows:
PART 953--IRISH POTATOES GROWN IN SOUTHEASTERN STATES
1. The authority citation for 7 CFR part 953 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
2. A new subpart--Assessment Rates and a new Sec. 953.253 are added
to read as follows:
Note: This section will appear in the Code of Federal
Regulations.
Subpart--Assessment Rates
Sec. 953.253 Assessment rate.
On and after June 1, 1996, an assessment rate of $0.0075 per
hundredweight is established for Southeastern potatoes.
[[Page 27250]]
Dated: May 22, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-13617 Filed 5-30-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-13616 Grapes Grown in a Designated Area of Southeastern California; Revision of Container Requirements
[Federal Register Volume 61, Number 106 (Friday, May 31, 1996)]
[Rules and Regulations]
[Pages 27245-27247]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13616]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 925
[Docket No. FV95-925-1FIR]
Grapes Grown in a Designated Area of Southeastern California;
Revision of Container Requirements
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Agriculture (Department) is adopting as a
final rule, the provisions of an interim final rule with correction
which added two new containers to the list of containers authorized for
use by table grape handlers regulated under the marketing order. This
rule also reduces the minimum net weight of containers of California
table grapes from 22 pounds to 20 pounds and for grapes packed in poly
bags from 20 pounds to 18 pounds. The marketing order regulates the
handling of table grapes grown in a designated area of Southeastern
California. The marketing order is locally administered by the
California Desert Grape Administrative Committee (CDGAC). This rule
allows for more efficient use of containers and helps handlers meet
industry needs.
EFFECTIVE DATE: July 1, 1996.
FOR FURTHER INFORMATION CONTACT: Charles L. Rush, Marketing Order
Administration Branch, Fruit and Vegetable Division, AMS, USDA, P.O.
Box 96456, room 2526-S, Washington, DC 20090-6456, telephone (202) 690-
3670; or Rose M. Aguayo, California Marketing Field Office, Marketing
Order Administration Branch, Fruit and Vegetable Division, AMS, USDA,
2202 Monterey Street, Suite 102B, Fresno, California 93721; telephone
(209) 487-5901.
SUPPLEMENTARY INFORMATION: This final rule is issued under Marketing
Order No. 925 [7 CFR Part 925], as amended, regulating the handling of
table grapes grown in a designated area of Southeastern California,
hereinafter referred to as the ``order.'' The order is effective under
the Agricultural Marketing Agreement Act of 1937, as amended [7 U.S.C.
601-674], hereinafter referred to as the ``Act.''
The Department of Agriculture (Department) is issuing this final
rule in conformance with Executive Order 12866.
This rule has been reviewed under Executive Order 12778, Civil
Justice Reform. This rule is not intended to have retroactive effect.
This rule will not preempt any State or local laws, regulations, or
policies, unless they present an irreconcilable conflict with this
rule.
The Act provides that administrative proceedings must be exhausted
before parties may file suit in court. Under section 608c(15)(A) of the
Act, any handler subject to an order may file with the Secretary a
petition stating that the order, any provision of the order, or any
obligation imposed in connection with the order is not in accordance
with law and request a modification of the order or to be exempted
therefrom. A handler is afforded the opportunity for a hearing on the
petition. After the hearing the Secretary would rule on the petition.
The Act provides that the district court of the United States in any
district in which the handler is an inhabitant, or has his or her
principal place of business, has jurisdiction to review the Secretary's
ruling on the petition, provided an action is filed not later than 20
days after the date of the entry of the ruling.
Pursuant to requirements set forth in the Regulatory Flexibility
Act (RFA), the Agricultural Marketing Service (AMS) has considered the
economic impact of this rule on small entities.
The purpose of the RFA is to fit regulatory actions to the scale of
business subject to such actions in order that small businesses will
not be unduly or disproportionately burdened. Marketing orders issued
pursuant to the Act, and rules issued thereunder, are unique in that
they are brought about through group action of essentially small
entities acting on their own behalf. Thus, both statutes have small
entity orientation and compatibility.
There are approximately 20 handlers of California table grapes
subject to regulation under the order and approximately 80 table grape
producers in the production area. Small agricultural service firms are
defined by the Small Business Administration (13 CFR 121.601) as those
whose annual receipts are less than $5,000,000, and small agricultural
producers have been defined as those having annual receipts of less
than $500,000. A minority of handlers and producers are classified as
small entities.
This rule finalizes changes in the container requirements under the
marketing order for grapes grown in designated areas of Southeastern
California. This rule also finalizes a reduction in the minimum net
weight of containers of California table grapes from 22 pounds to 20
pounds and for grapes packed in poly bags from 20 pounds to 18 pounds.
These changes were unanimously recommended by the CDGAC.
An interim final rule was issued on March 11, 1996, and published
in the Federal Register (61 FR 11127, March 19, 1996), with an
effective date of March 19, 1996. That rule amended Sec. 925.304 of the
rules and regulations in effect under the order. That rule provided a
30-day comment period which ended April 18, 1996. No comments were
received. A correction document was issued on March 25, 1996, and
published in the Federal Register (61 FR 14013, March 29, 1996). The
document corrected amendatory language number 2 of the interim final
rule.
This action is in accordance with Sec. 925.52(a)(4) of the order.
This section authorizes the Secretary to fix the size, capacity,
weight, dimensions, markings,
[[Page 27246]]
materials, and pack of containers which may be used in the handling of
grapes.
Prior to the effective date of the interim final rule, Sec. 925.304
(b)(2) of the regulations specified that the minimum net weight
requirement for grapes in any container, except for containers
containing grapes packed in sawdust, cork, excelsior, or similar
packing material, or packed in bags or wrapped in plastic or paper, and
experimental containers, be 22 pounds based on the average net weight
of grapes in a representative sample of containers. Containers of
grapes packed in bags or wrapped in plastic or paper prior to being
placed in these containers were required to meet a net weight
requirement of 20 pounds.
Section 925.304 (b)(1) of the regulations specified the dimensions
of six containers that could be used by handlers of table grapes and
authorized the use of other types and sizes of containers on an
experimental basis.
The CDGAC met on November 27, and December 4, 1995, and unanimously
recommended changes in the container requirements. Specifically, the
CDGAC recommended reducing the minimum net weight of containers from 22
to 20 pounds and for containers of grapes wrapped or packed in poly
bags from 20 to 18 pounds, effective April 20, 1996. The CDGAC also
unanimously recommended adding two new containers (38S, 12 x 20 inches)
and (38T, 13\1/8\ x 15\7/8\ inches) to the list of authorized
containers. These changes are intended to improve the quality of grapes
delivered to consumers and reduce handling costs.
The genesis for discussion of revising containers used to pack
grapes began about 6 years ago when the recyclability of packaging
materials became of interest to consumers worldwide and then to
retailers who bore the brunt of consumers' concern. In addition to the
environmental concern expressed by consumers, retailers were concerned
about the increasing costs of disposing of packing and shipping
materials.
Simultaneously, in an effort to differentiate themselves in the
marketplace, many in the retail industry began demanding that grape
growers provide custom packs. One customer wanted only a certain type
of bag, another wanted only 5-kilo bags, another wanted bags with
nothing printed on them, while yet another wanted a special store code.
These kinds of demands from the retail and food service industry
led to a great deal of packaging experimentation within the California
grape industry. It also led to the realization that it had been 25
years since there had been any quantifiable packaging research. The
industry decided to take a critical look at grape packaging and
determine if current practices were getting the product to the retailer
and ultimately the consumer in the best possible condition; and if not,
what changes needed to be made to improve delivery. Toward that end,
the California Table Grape Commission funded a three-year research
project designed to answer a simple question: what types of containers
get grapes to the consumer in the best possible condition?
Grapes are a fragile product. The current method of packing is a
holdover from 25 years ago when grapes were sold at auctions and it was
considered a marketing advantage to overpack the box so that when
buyers looked at the box it was bulging with fruit. Too often though,
what they did not see was the condition of the fruit inside; crushed,
split or falling off the stem. In addition, the standard lug box in use
today was designed to fit railroad cars. Shipping grapes by rail car is
a part of the industry's past.
The study of table grape packaging was conducted by the University
of California at Davis and the University of California at Kearney
Agricultural Center at Parlier. The objective of the study was to
develop knowledge concerning packaging that allows the movement of
table grapes from the field to the consumer in the best possible
condition. At the reduced weight, the damage to the grapes,
particularly in terms of bruising, splitting and shattering, decreases.
Table grapes of most varieties suffered considerable damage when packed
at net weights of 22 or 23 pounds. The damage was reduced considerably
when the pack weights were reduced to 20 to 21 pounds.
Through the research conducted the CDGAC determined that other
container size and net weight options available were not in the best
interest of the industry. Further, wholesalers and retailers support
the recommended changes, and believe it is the best option.
Thus, the CDGAC's recommendation to reduce the minimum net weight
requirements is expected to result in higher quality grapes being
offered to consumers. This should increase satisfaction, strengthen
demand, and improve returns to growers and handlers.
Most grapes packed in California are palletized on 35- x 42-inch or
53- x 42-inch pallets prior to shipment. When received by wholesalers
or retailers, the grapes are unloaded and restacked on 48- x 40-inch
pallets.
Grocery and wholesale warehouse operations use 48- x 40-inch
pallets as the standard pallet for most products. The bulk of product
sold at retail outlets (e.g., cereal, paper products, canned goods,
etc.) are dry goods. These products are generally shipped on 48- x 40-
pallets. Consequently, the distribution channel is set up to
accommodate 48- x 40-inch pallets.
Nonstandard pallets such as those used by grape handlers have to be
disposed of at the receivers' expense. However, with the use of 48- x
40-inch pallets, which can be recycled, there should be a reduction in
expenses associated with pallets. The recycling program allows the
receiver to use the pallet more than once or remove it from the waste
stream to use or sell.
The changes in container requirements are supported by the
California Department of Agriculture, the California Grape and Tree
Fruit League, the California Table Grape Commission, the Food Marketing
Institute, and the National Association of Perishable Agricultural
Receivers. These organizations have all agreed that the reduction in
net weight is necessary to facilitate the implementation of an
industry-wide adoption of the standardized 48- x 40-inch pallet and the
incidence of damage to fruit due to over packing.
Thus, this rule allows the industry to use more efficient
containers and provides handlers with more flexibility in packing table
grapes. Imported table grapes will not be affected by this rule.
Based on the above, the AMS has determined that this action will
not have a significant economic impact on a substantial number of small
entities.
After consideration of all relevant material presented, including
the CDGAC's recommendation, and other available information, it is
found that finalizing the interim final rule, which was published in
the Federal Register (61 FR 11127, March 19, 1996) and corrected in the
Federal Register (61 FR 14013, March 29, 1996) will tend to effectuate
the declared policy of the Act.
List of Subjects in 7 CFR Part 925
Grapes, Marketing agreements, Reporting and recordkeeping
requirements.
For the reasons set forth in the preamble, 7 CFR part 925 is
amended as follows:
1. The authority citation for 7 CFR part 925 continues to read as
follows:
Authority: 7 U.S.C. 601-674.
[[Page 27247]]
PART 925--GRAPES GROWN IN A DESIGNATED AREA OF SOUTHEASTERN
CALIFORNIA
Accordingly, the interim final rule amending 7 CFR part 925 which
was published at 61 FR 11127, March 19, 1996, and corrected at 61 FR
14013, March 29, 1996, is adopted as a final rule.
Dated: May 22, 1996.
Robert C. Keeney,
Director, Fruit and Vegetable Division.
[FR Doc. 96-13616 Filed 5-30-96; 8:45 am]
BILLING CODE 3410-02-P
Complete official Federal Register PDF
FR Doc. 96-13607 Rangeland Research Grants Program; Administrative Provisions
[Federal Register Volume 61, Number 106 (Friday, May 31, 1996)]
[Rules and Regulations]
[Pages 27752-27759]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13607]
[[Page 27751]]
_______________________________________________________________________
Part IV
Department of Agriculture
_______________________________________________________________________
Cooperative State Research, Education, and Extension Service
_______________________________________________________________________
7 CFR Part 3401
Rangeland Research Grants Program: Administrative Provisions; Final
Rule
Federal Register / Vol. 61, No. 106 / Friday, May 31, 1996 / Rules
and Regulations
[[Page 27752]]
DEPARTMENT OF AGRICULTURE
Cooperative State Research, Education, and Extension Service
7 CFR Part 3401
Rangeland Research Grants Program; Administrative Provisions
AGENCY: Cooperative State Research, Education, and Extension Service,
USDA.
ACTION: Final rule; amendment.
-----------------------------------------------------------------------
SUMMARY: This final rule amends the Cooperative State Research,
Education, and Extension Service (CSREES) regulations relating to the
administration of the Rangeland Research Grants Program, which
prescribe the procedures to be followed annually in the solicitation of
rangeland research grant proposals, the evaluation of such proposals,
and the award of rangeland research grants under this program. This
rule implements the requirements of the National Environmental Policy
Act as outlined in Sec. 3401.6(c)(16), revises the objectives of the
program as stated in Sec. 3401.17(a), changes the agency name to
reflect the Departmental Reorganization, and makes a few additional
minor changes. CSREES is publishing these regulations in their entirety
to enhance their use by the public and to ensure expeditious submission
and processing of grant proposals.
EFFECTIVE DATE: May 31, 1996.
FOR FURTHER INFORMATION CONTACT:
Louise Ebaugh, Director, Office of Extramural Programs, Competitive
Research Grants and Awards Management, Cooperative State Research,
Education, and Extension Service, United States Department of
Agriculture, Ag Box 2245, Washington, DC 20250-2245. (Telephone (202)
401-5024).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction
The Office of Management and Budget has previously approved the
information collection requirements contained in the current
regulations at 7 CFR Part 3401 under the provisions of 44 U.S.C.
Chapter 35 and OMB Document No. 0524-0022 has been assigned. Public
reporting burden for the information collections contained in these
regulations is estimated to vary from \1/2\ hour to 3 hours per
response, including the time for reviewing instructions, searching
existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collection of information. Send comments
regarding this burden estimate or any other aspect of this collection
of information, including suggestions for reducing this burden, to
Department of Agriculture, Clearance Officer, OIRM, Room 404-W,
Washington, D.C. 20250; and to the Office of Management and Budget,
Paperwork Reduction Project (OMB Document No. 0524-0022), Washington,
D.C. 20503.
Classification
This rule has been reviewed under Executive Order 12866, and it has
been determined that it is not a ``significant regulatory action'' rule
because it will not have an annual effect on the economy of $100
million or more or adversely and materially affect a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities. This rule will not create any serious inconsistencies or
otherwise interfere with any actions taken or planned by another
agency. It will not materially alter the budgetary impact of
entitlements, grants, user fees or loan programs and does not raise
novel legal or policy issues arising out of legal mandates, the
President's priorities, or principles set forth in Executive Order No.
12866.
Executive Order No. 12778
The following information is given in compliance with Executive
Order No. 12778. All State and local laws and regulations that are in
conflict with this rule are preempted. No retroactive effect is to be
given to this rule. This rule does not require administrative
proceedings before parties may file suit in court.
Executive Order No. 12612
This rule has been reviewed under Executive Order No. 12612
pertaining to Federalism. While this rule will affect institutions of
higher education and other nonprofit organizations, it will do so only
to the extent of requiring that applicants and grantees comply with
existing laws, regulations, public policies, and the dictates of good
management to ensure the safeguarding of public funds. For this reason,
CSREES has determined that this rule will not have sufficient
Federalism implications to warrant the preparation of a Federalism
Assessment.
Regulatory Flexibility Act
The Department certifies that this rule will not have a significant
impact on a substantial number of small entities as defined in the
Regulatory Flexibility Act, Pub. L. No. 96-534 (5 U.S.C. 601 et seq).
Regulatory Analysis
Not required for this rulemaking.
Environmental Impact Statement
This regulation does not significantly affect the environment.
Therefore, an environmental impact statement is not required under the
National Environmental Policy Act of 1969, as amended. (42 U.S.C. 4321
et seq.)
Catalog of Federal Domestic Assistance
The Rangeland Research Grants Program is listed in the Catalog of
Federal Domestic Assistance under No. 10.200. For reasons set forth in
the Final Rule-related Notice to 7 CFR Part 3015, Subpart V (48 FR
29115, June 24, 1983), this program is excluded from the scope of
Executive Order 12372 which requires intergovernmental consultation
with State and local officials.
Background and Purpose
Under the authority of section 1480 of the National Agricultural
Research, Extension, and Teaching Policy Act of 1977, as amended, the
Secretary of Agriculture is authorized to make grants to land-grant
colleges and universities, State agricultural experiment stations, and
colleges, universities, and Federal laboratories having a demonstrable
capacity in rangeland research, as determined by the Secretary, to
carry out rangeland research. 7 CFR 2.107(a)(21) delegates this
authority to the Administrator of CSREES. On April 23, 1993, the
Rangeland Research Program regulations, 7 CFR Part 3401, were formally
set out and published in the Federal Register. CSREES now amends the
administrative regulations governing the Rangeland Research Grant
Program authorized by section 1480 in order to implement the
requirements of the National Environmental Policy Act in
Sec. 3401.6(c)(16), revise the program objectives in Sec. 3401.17,
change the Agency name from the Cooperative State Research Service to
the Cooperative State Research, Education, and Extension Service, and
make a few minor changes.
On October 27, 1995, the Department published a Notice in the
Federal Register (60 FR 55160-55167) proposing the amendment of this
rule and inviting comments from interested individuals and
organizations. Written comments were requested by November 27, 1995. No
comments were received.
List of Subjects in 7 CFR Part 3401
Grant programs--agriculture, Grants administration.
[[Page 27753]]
For the reasons set out in the preamble, Title 7, Subtitle B,
Chapter XXXIV, Part 3401 of the Code of Federal Regulations, is revised
to read as follows:
CHAPTER XXXIV--COOPERATIVE STATE RESEARCH, EDUCATION, AND EXTENSION
SERVICE, DEPARTMENT OF AGRICULTURE
PART 3401--RANGELAND RESEARCH GRANTS PROGRAM
Subpart A--General
Sec.
3401.1 Applicability of regulations of this part.
3401.2 Definitions.
3401.3 Eligibility requirements.
3401.4 Matching funds requirement.
3401.5 Indirect costs and tuition remission costs.
3401.6 How to apply for a grant.
3401.7 Evaluation and disposition of applications.
3401.8 Grant awards.
3401.9 Use of funds; changes.
3401.10 Other Federal statutes and regulations that apply.
3401.11 Other conditions.
Subpart B--Scientific Peer Review of Research Applications for Funding
3401.12 Establishment and operation of peer review groups.
3401.13 Composition of peer review groups.
3401.14 Conflicts of interest.
3401.15 Availability of information.
3401.16 Proposal review.
3401.17 Review criteria.
Authority: Section 1470 of the National Agricultural Research,
Extension and Teaching Policy Act of 1977 (7 U.S.C. 3316).
Subpart A--General
Sec. 3401.1 Applicability of regulations of this part.
(a) The regulations of this Part apply to rangeland research grants
awarded under the authority of section 1480 of the National
Agricultural Research, Extension, and Teaching Policy Act of 1977, as
amended (7 U.S.C. 3333) to land-grant colleges and universities, State
agricultural experiment stations, and colleges, universities, and
Federal laboratories having a demonstrable capacity in rangeland
research, as determined by the Secretary, to carry out rangeland
research. The Administrator of the Cooperative State Research,
Education, and Extension Service (CSREES) shall determine and announce,
through publication each year of a Notice in the Federal Register,
professional trade journals, agency or program handbooks, the catalog
of Federal Domestic Assistance or any other appropriate means, research
program areas for which proposals will be solicited, to the extent that
funds are available.
(b) The regulations of this Part do not apply to research grants
awarded by the Department of Agriculture under any other authority.
Sec. 3401.2 Definitions.
As used in this part:
(a) Administrator means the Administrator of CSREES and any other
officer or employee of the Department of Agriculture to whom the
authority involved may be delegated.
(b) Department means the Department of Agriculture.
(c) Principal investigator means a single individual designated by
the grantee in the application for funding and approved by the
Administrator who is responsible for the scientific and technical
direction of the project.
(d) Grantee means the entity designated in the grant award document
as the responsible legal entity to whom a grant is awarded under this
Part.
(e) Research project grant means the award by the Administrator of
funds to a grantee to assist in meeting the costs of conducting, for
the benefit of the public, an identified project which is intended and
designed to establish, discover, elucidate, or confirm information or
the underlying mechanisms relating to a research program area
identified in the annual solicitation of applications.
(f) Project means the particular activity within the scope of one
or more of the research program areas identified in the annual
solicitation of applications, which is supported by a grant award under
this Part.
(g) Project period means the total length of time that is approved
by the Administrator for conducting the research project as outlined in
an approved application for funding.
(h) Budget period means the interval of time (usually 12 months)
into which the project period is divided for budgetary and reporting
purposes.
(i) Awarding official means the Administrator and any other officer
or employee of the Department to whom the authority to issue or modify
research project grant instruments has been delegated.
(j) Peer review group means an assembled group of experts or
consultants qualified by training or experience in particular
scientific or technical fields to give expert advice, in accordance
with the provisions of this Part, on the scientific and technical merit
of applications for funding in those fields.
(k) Ad hoc reviewers means experts or consultants qualified by
training or experience in particular scientific or technical fields to
render special expert advice, whose written evaluations of applications
for funding are designed to complement the expertise of the peer review
group, in accordance with the provisions of this Part, on the
scientific or technical merit of applications for Funding in those
fields.
(l) Research means any systematic study directed toward new or
fuller knowledge and understanding of the subject studied.
(m) Methodology means the project approach to be followed and the
resources needed to carry out the project.
Sec. 3401.3 Eligibility requirements.
(a) Except where otherwise prohibited by law, any land-grant
college and university, State agricultural experiment station, and
college, university, and Federal laboratory having a demonstrable
capacity in rangeland research, as determined by the Secretary, shall
be eligible to apply for and to receive a project grant under this
Part, provided that the applicant qualifies as a responsible grantee
under the criteria set forth in paragraph (b) of this section.
(b) To qualify as responsible, an applicant must meet the following
standards as they relate to a particular project:
(1) Have adequate financial resources for performance, the
necessary experience, organizational and technical qualifications, and
facilities, or a firm commitment, arrangement, or ability to obtain
such (including proposed subagreements);
(2) Be able to comply with the proposed or required completion
schedule for the project;
(3) Have a satisfactory record of integrity, judgment, and
performance, including, in particular, any prior performance under
grants and contracts from the Federal government;
(4) Have an adequate financial management system and audit
procedure which provides efficient and effective accountability and
control of all property, funds, and other assets; and
(5) Be otherwise qualified and eligible to receive a research
project grant under applicable laws and regulations.
(c) Any applicant who is determined to be not responsible will be
notified in writing of such findings and the basis therefor.
Sec. 3401.4 Matching funds requirement.
In accordance with section 1480 of the National Agricultural
Research, Extension, and Teaching Policy Act of
[[Page 27754]]
1977, as amended (7 U.S.C. 3333), except in the case of Federal
laboratories, each grant recipient must match the Federal funds
expended on a research project based on a formula of 50 percent Federal
and 50 percent non-Federal funding.
Sec. 3401.5 Indirect costs and tuition remission costs.
Pursuant to section 1473 of the National Agricultural Research,
Extension, and Teaching Policy Act of 1977, as amended (7 U.S.C. 3319),
funds made available under this program to recipients other than
Federal laboratories shall not be subject to reduction for indirect
costs or tuition remission costs. Since indirect costs and tuition
remission costs, except in the case of Federal laboratories, are not
allowable costs for purposes of this program, such costs may not be
used to satisfy the matching requirement set forth in Sec. 3401.4.
Sec. 3401.6 How to apply for a grant.
(a) General. After consultation with the Rangeland Research
Advisory Board, established pursuant to section 1482 of the National
Agricultural Research, Extension, and Teaching Policy Act of 1977, as
amended (7 U.S.C. 3335), a request for proposals will be prepared and
announced through publications such as the Federal Register,
professional trade journals, agency or program handbooks, the Catalog
of Federal Domestic Assistance, or any other appropriate means of
solicitation, as early as practicable each fiscal year. It will contain
information sufficient to enable all eligible applicants to prepare
rangeland research grant proposals and will be as complete as possible
with respect to:
(1) Descriptions of specific research program areas which the
Department proposes to support during the fiscal year involved,
including anticipated funds to be awarded;
(2) Deadline dates for having proposal packages postmarked;
(3) Name and address where proposals should be mailed;
(4) Number of copies to be submitted;
(5) Forms required to be used when submitting proposals; and
(6) Special requirements.
(b) Application kit. An Application Kit will be made available to
any potential grant applicant who requests a copy. This kit contains
required forms, certifications, and instructions applicable to the
submission of grant proposals.
(c) Format for research grant proposals. Unless otherwise stated in
the specific program solicitation, the following format applies:
(1) Application for funding. All research grant proposals submitted
by eligible applicants should contain an Application for Funding form,
which must be signed by the proposing principal investigator(s) and
endorsed by the cognizant authorized organizational representative who
possesses the necessary authority to commit the applicant's time and
other relevant resources.
(2) Title of Project. The title of the project must be brief (80-
character maximum), yet represent the major thrust of the research.
This title will be used to provide information to the Congress and
other interested parties who may be unfamiliar with scientific terms;
therefore, highly technical words or phraseology should be avoided
where possible. In addition, phrases such as ``investigation of'' or
``research on'' should not be used.
(3) Objectives. Clear, concise, complete, enumerated, and logically
arranged statement(s) of the specific aims of the research must be
included in all proposals.
(4) Procedures. The procedures of methodology to be applied to the
proposed research plan should be stated explicitly. This section should
include but not necessarily be limited to:
(i) A description of the proposed investigations and/or experiments
in the sequence in which it is planned to carry them out;
(ii) Techniques to be employed, including their feasibility;
(iii) Kinds of results expected;
(iv) Means by which data will be analyzed or interpreted;
(v) Pitfalls which might be encountered; and
(vi) Limitations to proposed procedures.
(5) Justification. This section of the grant proposal should
describe:
(i) The importance of the problem to the needs of the Department
and to the Nation, including estimates of the magnitude of the problem;
(ii) The importance of starting the work during the current fiscal
year; and
(iii) Reasons for having the work performed by the proposing
organization.
(6) Literature review. A summary of pertinent publications with
emphasis on their relationship to the research should be provided and
should include all important and recent publications. The citations
should be accurate, complete, written in acceptable journal format, and
be appended to the proposal.
(7) Current research. The relevancy of the proposed research to
ongoing and, as yet, unpublished research of both the applicant and any
other institutions should be described.
(8) Facilities and equipment. All facilities, including
laboratories, that are available for use or assignment to the proposed
research project during the requested period of support, should be
reported and described. Any materials, procedures, situations, or
activities, whether or nor directly related to a particular phase of
the proposed research, and which may be hazardous to personnel, must be
explained fully, along with an outline of precautions to be exercised.
All items of major instrumentation available for use or assignment to
the proposed research project during the requested period of support
should be itemized. In addition, items of nonexpendable equipment
needed to conduct and bring the proposed project to a successful
conclusion should be listed.
(9) Collaborative arrangements. If the proposed project requires
collaboration with other research scientists, corporations,
organizations, agencies, or entities, such collaboration must be
explained fully and justified. Evidence should be provided to assure
peer reviewers that the collaborators involved agree with the
arrangements. It should be specifically indicated whether or not such
collaborative arrangements have the potential for any conflict(s) of
interest. Proposals which indicate collaborative involvements must
state which applicant is to receive any resulting grant award, since
only one eligible applicant, as provided in Sec. 3401.3 may be the
recipient of a research project grant under one proposal.
(10) Research timetable. The applicant should outline all important
research phases as a function of time, year by year.
(11) Personnel support. All personnel who will be involved in the
research effort must be identified clearly. For each scientist
involved, the following should be included:
(i) An estimate of the time commitments necessary;
(ii) Vitae of the principal investigator(s), senior associate(s),
and other professional personnel to assist reviewers in evaluating the
competence and experience of the project staff. This section should
include curricula vitae of all key persons who will work on the
proposed research project, whether or not Federal funds are sought for
their support. The vitae are to be no more than two pages each in
length, excluding publication listings; and
(iii) A chronological listing of the most representative
publications during
[[Page 27755]]
the past five years shall be provided for each professional project
member of whom a curriculum vitae appears under this section. Authors
should be listed in the same order as they appear on each paper cited,
along with the title and complete reference as these usually appear in
journals.
(12) Budget. A detailed budget is required for each year of
requested support. In addition, a summary budget is required detailing
requested support for the overall project period. A copy of the form
which must be used for this purpose, along with instructions for
completion, is included in the Application Kit identified under
Sec. 3401.6(b) and may be reproduced as needed by applicants. Funds may
be requested under any of the categories listed, provided that the item
or service for which support is requested is allowable under applicable
Federal cost principles and can be identified as necessary for
successful conduct of the proposed research project. As stated in
Sec. 3401.4 each grant recipient must match the Federal funds expended
on a research project based on a formula of 50 percent Federal and 50
percent non-Federal funding. As stated in Sec. 3401.5, indirect costs
and tuition remission costs are not allowable costs for purposes of
this program and , thus, may not be used to satisfy the matching
requirement set forth in Sec. 3401.4.
(13) Research involving special considerations. A number of
situations encountered in the conduct of research require special
information and supporting documentation before funding can be approved
for the project. If such situations are anticipated, the proposal must
so indicate. It is expected that a significant number of rangeland
grant proposals will involve the following:
(i) Recombinant DNA molecules. All key personnel identified in a
proposal and all endorsing officials of a proposed performing entity
are required to comply with the guidelines establishing by the National
Institutes of Health entitled, ``Guidelines for Research Involving
Recombinant DNA Molecules,'' as revised. The Application Kit,
identified above in Sec. 3401.6(b), contains a form which is suitable
for such certification of compliance. In the event a project involving
recombinant DNA and RNA molecules results in a grant award, the
Institutional Biosafety Committee must approve the research before
CSREES funds will be released.
(ii) Human subjects at risk. Responsibility for safeguarding the
rights and welfare of human subjects used in any research project
supported with grant funds provided by the Department rests with the
performing entity. Regulations have been issued by the Department under
7 CFR Part 1c, Protection of Human Subjects. In the event that a
project involving human subjects at risk is recommended for award, the
applicant will be required to submit a statement certifying that the
research plan has been reviewed and approved by the Institutional
Review Board at the proposing organization or institution. The
Application Kit, identified above in Sec. 3401.6(b), contains a form
which is suitable for such certification. In the event a project
involving human subjects results in a grant award, funds will be
released only after the Institutional Committee has approved the
project.
(iii) Laboratory animal care. The responsibility for the humane
care and treatment of any laboratory animal, which has the same meaning
as ``animal'' in section 2(g) of the Animal Welfare Act of 1966, as
amended (7 U.S.C. 2132(g)), used in any research project supported with
Rangeland Research Grant Program funds rests with the performing
organization. In this regard, all key personnel identified in a
proposal and all endorsing officials of the proposed performing entity
are required to comply with the applicable provisions of the Animal
Welfare Act of 1966, as amended (7 U.S.C. 2131 et seq.) and the
regulations promulgated thereunder by the Secretary of Agriculture in 9
CFR Parts 1, 2, 3, and 4. In the event that a project involving the use
of a laboratory animal is recommended for award, the applicant will be
required to submit a statement certifying such compliance. The
Application Kit, identified above in Sec. 3401.6(b), contains a form
which is suitable for such certification. In the event a project
involving the use of living vertebrate animals results in a grant
award, funds will be released only after the Institutional Animal Care
and Use Committee has approved the project.
(14) Current and pending support. All proposals must list any other
current public or private research support, in addition to the proposed
project, to which key personnel listed in the proposal under
consideration have committed portions of their time, whether or not
salary support for the person(s) involved is included in the budgets of
the various projects. This section must also contain analogous
information for all projects underway and for pending research
proposals which are currently being considered by, or which will be
submitted in the near future to, other possible sponsors, including
other Departmental programs or agencies. Concurrent submission of
identical or similar projects to other possible sponsors will not
prejudice its review or evaluation by the Administrator or experts or
consultants engaged by the Administrator for this purpose. The
Application Kit, identified above in Sec. 3401.6(b), contains a form
which is suitable for listing current and pending support.
(15) Additions to project description. Each project description is
expected by the Administrator, members of peer review groups, and the
relevant program staff to be complete in itself. However, in those
instances in which the inclusion of additional information is
necessary, the number of copies submitted should match the number of
copies of the application requested in the annual solicitation of
proposals as indicated in Sec. 3401.6(a)(4). Each set of such materials
must be identified with the title of the research project as it appears
in the Application for Funding and the name(s) of the principal
investigator(s). Examples of additional materials may include
photographs which do not reproduce well, reprints, and other pertinent
materials which are deemed to be unsuitable for inclusion in the
proposal.
(16) National Environmental Policy Act. As outlined in CSREES's
implementing regulations of the National Environmental Policy Act of
1969 (NEPA) at 7 CFR Part 3407, environmental data or documentation for
the proposed project is to be provided to CSREES in order to assist
CSREES in carrying out its responsibilities under NEPA. These
responsibilities include determining whether the project requires an
Environmental Assessment or an Environmental Impact Statement or
whether it can be excluded from this requirement on the basis of
several categorical exclusions listed in 7 CFR part 3407. In this
regard, the applicant should review the categories defined for
exclusion to ascertain whether the proposed project may fall within one
or more of the exclusions, and should indicate if it does so on the
National Environmental Policy Act Exclusions Form (Form CSREES--1234)
provided in the Application Kit. Even though the applicant considers
that a proposed project may fall within a categorical exclusion, CSREES
may determine that an Environmental Assessment or an Environmental
Impact Statement is necessary for a proposed project should substantial
controversy on environmental grounds exist or if other extraordinary
conditions or circumstances are present that may
[[Page 27756]]
cause such activity to have a significant environmental effect.
(17) Organizational management information. Specific management
information relating to an applicant shall be submitted on an one-time
basis prior to the award of a research project grant identified under
this Part if such information has not been provided previously under
this or another program for which the sponsoring agency is responsible.
Copies of forms recommended for use in fulfilling the requirements
contained in this section will be provided by the agency specified in
this Part once a research project grant has been recommended for
funding.
Sec. 3401.7 Evaluation and disposition of applications.
(a) Evaluation. All proposals received from eligible applicants in
accordance with eligible research problem or program areas and
deadlines established in the applicable request for proposals shall be
evaluated by the Administrator through such officers, employees, and
others as the Administrator determines are particularly qualified in
the areas of research represented by particular projects. To assist in
equitably and objectively evaluating proposals and to obtain the best
possible balance of viewpoints, the Administrator may solicit the
advice of peer scientists, ad hoc reviewers, or others who are
recognized specialists in the research program areas covered by the
applications received. Specific evaluations will be based upon the
criteria established in Subpart B of this Part, Sec. 3401.17, unless
CSREES determines that different criteria are necessary for the proper
evaluation of proposals in one or more specific program areas, and
announces such criteria and their relative importance in the annual
program solicitation. The overriding purpose of such evaluations is to
provide information upon which the Administrator can make informed
judgments in selecting proposals for ultimate support. Incomplete,
unclear, or poorly organized applications will work to the detriment of
applicants during the peer evaluation process. To ensure a
comprehensive evaluation, all applications should be written with the
care and thoroughness accorded papers for publication.
(b) Disposition. On the basis of the Administrator's evaluation of
an application in accordance with paragraph (a) of this section, the
Administrator will approve using currently available funds, defer
support due to lack of funds or a need for further evaluations, or
disapprove support for the proposed project in whole or in part. With
respect to approved projects, the Administrator will determine the
project period (subject to extension as provided in Sec. 3401.9(c))
during which the project may be supported. Any deferral or disapproval
of an application will not preclude its reconsideration or a
reapplication during subsequent fiscal years.
Sec. 3401.8 Grant awards.
(a) General. Within the limit of funds available for such purpose,
the awarding official shall make research project grants to those
responsible, eligible applicants whose proposals are judged most
meritorious in the announced program areas under the evaluation
criteria and procedures set forth in this Part. The date specified by
the Administrator as the beginning of the project period shall be no
later than September 30 of the Federal fiscal year in which the project
is approved for support and funds are appropriated for such purpose,
unless otherwise permitted by law. All funds granted under this Part
shall be expended solely for the purpose for which the funds are
granted in accordance with the approved application and budget, the
regulations of this Part, the terms and conditions of the award, the
applicable Federal cost principles, and the Department's ``Uniform
Federal Assistance Regulations'' (Parts 3015 and 3019 of this Title).
(b) Grant award document and notice of grant award.
(1) Grant award documents. The grant award document shall include
at a minimum the following:
(i) Legal name and address of performing organization or
institution to whom the Administrator has awarded a rangeland research
project grant under the terms of this Part;
(ii) Title of project;
(iii) Name(s) and address(es) of principal investigator(s) chosen
to direct and control approved activities;
(iv) Identifying grant number assigned by the Department;
(v) Project period, which specifies how long the Department intends
to support the effort without requiring recompetition for funds;
(vi) Total amount of Departmental financial assistance approved by
the Administrator during the project period;
(vii) Legal authority(ies) under which the research project grant
is awarded to accomplish the purpose of the law;
(viii) Approved budget plan for categorizing allocable project
funds to accomplish the stated purpose of the research project grant
award; and
(ix) Other information or provisions deemed necessary by the
Department to carry out its granting activities or to accomplish the
purpose of a particular research project grant.
(2) Notice of grant award. The notice of grant award, in the form
of a letter, will be prepared and will provide pertinent instructions
or information to the grantee that is not included in the grant award
document.
(c) Categories of grant instruments. The major categories of grant
instruments by which the Department may provide support are as follows:
(1) Standard grant. This is a grant instrument by which the
Department agrees to support a specified level of research effort for a
predetermined project period without the announced intention of
providing additional support at a future date. This type of research
project grant is approved on the basis of peer review and
recommendation and is funded for the entire project period at the time
of award.
(2) Renewal grant. This is a document by which the Department
agrees to provide additional funding under a standard grant as
specified in paragraph (c)(1) of this section for a project period
beyond that approved in an original or amended award, provided that the
cumulative period does not exceed the statutory limitation. When a
renewal application is submitted, it should include a summary of
progress to date under the previous grant instrument. Such a renewal
shall be based upon new application, de novo peer review and staff
evaluation, new recommendation and approval, and a new award
instrument.
(3) Continuation grant. This is a grant instrument by which the
Department agrees to support a specified level of effort for a
predetermined period of time with a statement of intention to provide
additional support at a future date, provided that performance has been
satisfactory, appropriations are available for this purpose, and
continued support would be in the best interests of the Federal
government and the public. It involves a long-term research project
that is considered by peer reviewers and Departmental officers to have
an unusually high degree of scientific merit, the results of which are
expected to have a significant impact on the productivity of the
Nation's rangelands, and it supports the efforts of experienced
scientists with records of outstanding research accomplishments. This
kind of document normally will be awarded for an initial one-year
period and any subsequent continuation research project grants also
will be awarded in one-year increments, but in no case may the
cumulative period of
[[Page 27757]]
the project exceed the statutory limit. The award of a continuation
research project grant to fund an initial or succeeding budget period
does not constitute an obligation to fund any subsequent budget period.
A grantee must submit a separate application for continued support for
each subsequent fiscal year. Requests for such continued support must
be submitted in duplicate at least three months prior to the expiration
date of the budget period currently being funded. Such requests must
include: an interim progress report detailing all work performed to
date; an Application for Funding; a proposed budget for the enuring
period, including an estimate of funds anticipated to remain
unobligated at the end of the current budget period; and current
information regarding other extramural support for senior personnel.
Decisions regarding continued support and the actual funding levels of
such support in future years usually will be made administratively
after consideration of such factors as the grantee's progress and
management practices and within the context of available funds. Since
initial peer reviews were based upon the full term and scope of the
original rangeland research application for funding, additional
evaluations of this type generally are not required prior to successive
years' support. However, in unusual cases (e.g., when the nature of the
project or key personnel change or when the amount of future support
requested substantially exceeds the application for funding originally
reviewed and approved), additional reviews may be required prior to
approval of continued funding.
(4) Supplemental grant. This is an instrument by which the
Department agrees to provide small amounts of additional funding under
a standard, renewal, or continuation grant as specified in paragraphs
(c)(1), (c)(2), and (c)(3) of this section and may involve a short-term
(usually six months or less) extension of the project period beyond
that approved in an original or amended award, but in no case may the
cumulative period of the project, including short term extensions,
exceed the statutory time limitation. A supplement is awarded only if
required to assure adequate completion of the original scope of work
and if there is sufficient justification of need to warrant such
action. A request of this nature normally does not require additional
peer review.
(d) Obligation of the Federal government. Neither the approval of
any application nor the award of any research project grant shall
commit or obligate the United States in any way to make any renewal,
supplemental, continuation, or other award with respect to any approved
application or portion of an approved application.
Sec. 3401.9 Use of funds; changes.
(a) Delegation of fiscal responsibility. The grantee may not
delegate or transfer in whole or in part, to another person,
institution, or organization the responsibility for use or expenditure
of grant funds.
(b) Change in project plans.
(1) The permissible changes by the grantee, principal
investigator(s), or other key project personnel in the approved
research project grant shall be limited to changes in methodology,
techniques, or other aspects of the project to expedite achievement of
the projects' approved goals. If the grantee or the principal
investigator(s) is uncertain as to whether a change complies with this
provision, the question shall be referred to the Administrator for a
final determination.
(2) Changes in approved goals, or objectives, shall be requested by
the grantee and approved in writing by the Department prior to
effecting such changes. In no event shall requests for such changes be
approved which are outside the scope of the original approved project.
(3) Changes in approved project leadership or the replacement or
reassignment of other key project personnel shall be requested by the
grantee and approved in writing by the Department prior to effecting
such changes.
(4) Transfers of actual performance of the substantive programmatic
work in whole or in part and provisions for payment of funds, whether
or not Federal funds are involved, shall be requested by the grantee
and approved in writing by the Department prior to effecting such
changes, except as may be allowed in the terms and conditions of a
grant award.
(c) Changes in project period. The project period determined
pursuant to Sec. 3401.7(b) may be extended by the Administrator without
additional financial support, for such additional period(s) as the
Administrator determines may be necessary to complete, or fulfill the
purposes of, an approved project. Any extension, when combined with the
originally approved or amended project period, shall be conditioned
upon prior request by the grantee and approval in writing by the
Department, unless prescribed otherwise in the terms and conditions of
a grant award.
(d) Changes in approved budget. The terms and conditions of a grant
will prescribe circumstances under which written Departmental approval
will be requested and obtained prior to instituting changes in an
approved budget.
Sec. 3401.10 Other Federal statutes and regulations that apply.
Several other Federal statutes and/or regulations apply to grant
proposals considered for review or to research project grants awarded
under this Part. These include but are not limited to:
7 CFR Part 1c--USDA implementation of the Federal Policy for the
Protection of Human Subjects;
7 CFR Part 1.1--USDA implementation of Freedom of Information
Act:
7 CFR Part 3--USDA implementation of OMB Circular A-129
regarding debt collection;
7 CFR Part 15, Subpart A--USDA implementation of Title VI of the
Civil Rights Act of 1964;
7 CFR Part 3015--USDA Uniform Federal Assistance Regulations,
implementing OMB directives (i.e., Circular Nos. A-110, A-21, and A-
122) and incorporating provisions of 31 U.S.C. 6301-6308 (formerly,
the Federal Grant and Cooperative Agreement Act of 1977), as well as
general policy requirements applicable to recipients of Departmental
financial assistance;
7 CFR Part 3017, as amended--USDA implementation of
Governmentwide Debarment and Suspension (Nonprocurement) and
Governmentwide Requirements for Drug-Free Workplace (Grants);
7 CFR Part 3018--USDA implementation of New Restrictions on
Lobbying. Imposes new prohibitions and requirements for disclosure
and certification related to lobbying on recipients of Federal
contracts, grants, cooperative agreements, and loans;
7 CFR Part 3019--USDA Uniform Administrative Requirements for
Grants and Agreements with Institutions of Higher Education,
Hospitals, and Other Non-profit Organizations;
7 CFR Part 3051--Audits of Institutions of Higher Education and
Other Nonprofit Institutions;
7 CFR Part 3407--CSREES procedures to implement the National
Environmental Policy Act;
29 U.S.C. 794 (section 504, Rehabilitation Act of 1973) and 7
CFR Part 15B (USDA implementation of statute)--prohibiting
discrimination based upon physical or mental handicap in Federally
assisted programs; and
35 U.S.C. 200 et seq.--Bayh-Dole Act, controlling allocation of
rights to inventions made by employees of small business firms and
domestic nonprofit organizations, including universities, in
Federally assisted programs (implementing regulations are contained
in 37 CFR Part 401).
Sec. 3401.11 Other conditions.
The Administrator may, with respect to any research project grant
or to any class of awards, impose additional
[[Page 27758]]
conditions prior to or at the time of any award when, in the
Administrator's judgment, such conditions are necessary to assure or
protect advancement of the approved project, the interests of the
public, or the conservation of grant funds.
Subpart B--Scientific Peer Review of Research Applications for
Funding
Sec. 3401.12 Establishment and operation of peer review groups.
Subject to Sec. 3401.7, the Administrator will adopt procedures for
the conduct of peer reviews and the formulation of recommendations
under Sec. 3401.16.
Sec. 3401.13 Composition of peer review groups.
Peer review group members will be selected based upon their
training or experience in relevant scientific or technical fields,
taking into account the following factors:
(a) The level of formal scientific or technical education by the
individual;
(b) The extent to which the individual has engaged in relevant
research, the capacities in which the individual has done so (e.g.,
principal investigator, assistant), and the quality of such research;
(c) Professional recognition as reflected by awards and other
honors received from scientific and professional organizations outside
of the Department;
(d) The need of the group to include within its membership experts
from various areas of specialization within relevant scientific or
technical fields;
(e) The need of the group to include within its membership experts
from a variety of organizational types (e.g., universities, industry,
private consultant(s)) and geographic locations; and
(f) The need of the group to maintain a balanced membership, e.g.,
minority and female representation and an equitable age distribution.
Sec. 3401.14 Conflicts of interest.
Members of peer review groups covered by this Part are subject to
relevant provisions contained in Title 18 of the United States Code
relating to criminal activity, Department regulations governing
employee responsibilities and conduct (Part O of this title), and
Executive Order 11222 (3 CFR, 1964-1965 Comp., p. 306), as amended.
Sec. 3401.15 Availability of information.
Information regarding the peer review process will be made
available to the extent permitted under the Freedom of Information Act
(5 U.S.C. 552), the Privacy Act (5 U.S.C. 552a.), and implementing
Departmental regulations (Part 1 of this title).
Sec. 3401.16 Proposal review.
(a) All research Applications for Funding will be acknowledged.
Prior to technical examination, a preliminary review will be made for
responsiveness to the request for proposals (e.g., relationship of
application to research program area). Proposals that do not fall
within the guidelines as stated in the annual request for proposals
will be eliminated from competition and will be returned to the
applicant. Proposals whose budgets exceed the maximum allowable amount
for a particular program area as announced in the request for proposals
may be considered as lying outside the guidelines.
(b) All applications will be reviewed carefully by the
Administrator, qualified officers or employees of the Department, the
respective merit review panel, and ad hoc reviewers, as required.
Written comments will be solicited from ad hoc reviewers, when
required, and individual written comments and in-depth discussions will
be provided by peer review group members prior to recommending
applications for funding. Applications will be ranked and support
levels recommended within the limitation of total available funding for
each research program area as announced in the applicable request for
proposals.
(c) Except to the extent otherwise provided by law, such
recommendations are advisory only and are not binding on program
officers or on the awarding official.
Sec. 3401.17 Review criteria.
(a) Federally funded research supported under these provisions
shall be designed to, among other things, accomplish one or more of the
following purposes:
(1) improve management of rangelands as an integrated system and/or
watershed;
(2) remedy unstable or unsatisfactory rangeland conditions;
(3) increase revegetation and/or rehabilitation of rangelands;
(4) examine the health of rangelands; and
(5) define economic parameters associated with rangelands.
(b) In carrying out its review under Sec. 3401.16, the peer review
panel will use the following form upon which the evaluation criteria to
be used are enumerated, unless, pursuant to Sec. 3401.7(a), different
evaluation criteria are specified in the annual solicitation of
proposals for a particular program:
Peer Panel Scoring Form
Proposal Identification No.--------------------------------------------
Institution and Project Title------------------------------------------
I. Basic Requirement:
Proposal falls within guidelines? ________ Yes ________ No. If
no, explain why proposal does not meet guidelines under comment
section of this form.
II. Selection Criteria:
----------------------------------------------------------------------------------------------------------------
Score X
Score 1-10 Weight weight Comments
factor factor
----------------------------------------------------------------------------------------------------------------
1. Overall scientific and technical quality of
proposal............................................. 10
2. Scientific and technical quality of the approach... 10
Relevance and importance of proposed research to
solution of specific areas of inquiry................ 6
4. Feasibility of attaining objectives; adequacy of
professional training and experience, facilities and
equipment............................................ 5
----------------------------------------------------------------------------------------------------------------
Score------------------------------------------------------------------
Summary Comments-------------------------------------------------------
[[Page 27759]]
(c) Proposals satisfactorily meeting the guidelines will be
evaluated and scored by the peer review panel for each criterion
utilizing a scale of 1 through 10. A score of one (1) will be
considered low and a score of ten (10) will be considered high for each
selection criterion. A weighted factor is used for each criterion.
Done at Washington, D.C., this 23rd day of May, 1996.
B.H. Robinson
Administrator, Cooperative State Research, Education, and Extension
Service.
[FR Doc. 96-13607 Filed 5-30-96; 8:45 am]
BILLING CODE 3410-22-M
Complete official Federal Register PDF
FR Doc. 96-13594 Groundfish of the Gulf of Alaska; Pollock Seasonal Allowances
[Federal Register Volume 61, Number 106 (Friday, May 31, 1996)]
[Rules and Regulations]
[Pages 27308-27312]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13594]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
50 CFR Part 672
[Docket No. 960228053-6142-02; I.D. 022296E]
RIN 0648-AI56
Groundfish of the Gulf of Alaska; Pollock Seasonal Allowances
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: NMFS issues a final rule to implement Amendment 45 to the
Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP).
This rule combines the third and fourth quarterly allowances for
pollock in the three statistical areas of the combined Western and
Central (W/C) Regulatory Area into single seasonal allowances that will
become available on September 1 of each fishing year. Changes to the
final 1996 harvest specifications of Gulf of Alaska (GOA) pollock are
also made to reflect the revised seasonal allowances. These measures
are necessary to address management problems that have been identified
by the fishing industry. They are intended to further the management
objectives of the FMP.
EFFECTIVE DATE: May 30, 1996.
ADDRESSES: Copies of Amendment 45 and the Environmental Assessment/
Regulatory Impact Review (EA/RIR) prepared for Amendment 45 may be
obtained from the North Pacific Fishery Management Council, 605 W. 4th
Ave. Suite #306, Anchorage, AK 99501.
FOR FURTHER INFORMATION CONTACT: Kent Lind, (907) 586-7228.
SUPPLEMENTARY INFORMATION: The pollock fishery in the exclusive
economic zone of the GOA is managed by NMFS under the FMP. The FMP was
prepared by the North Pacific Fishery Management Council (Council)
under the Magnuson Fishery Conservation and Management Act (Magnuson
Act) and is implemented by regulations found at 50 CFR part 672.
General regulations governing U.S. fisheries are also found at 50 CFR
part 620.
Background
Amendment 45 removes the requirement that the total allowable catch
(TAC) specified for pollock in three statistical areas of the W/C
Regulatory Area be divided into four equal quarterly allowances and
replaces it with more flexible language requiring that the TACs be
divided into seasonal allowances rather than quarterly allowances.
Amendment 45 authorizes NMFS to establish the number and timing of
seasonal allowances in regulation. The Council's objective in adopting
Amendment 45 was to allow NMFS to combine by regulatory amendment the
third quarter (July 1) and fourth quarter (October 1) allowances for
pollock in the statistical areas of the W/C Regulatory Area into single
seasonal allowances that would become available in September or
October.
The action has the following objectives: (1) Reduced chum salmon
bycatch, which has been high during the third quarter (July 1) opening;
(2) reduced scheduling conflicts with summer salmon processing
activities; (3) reduced operating costs for industry; and (4) reduced
risk of harvest overruns during extremely short openings. Additional
information on this action may be found in the preamble to the proposed
rule published in the Federal Register on March 12, 1996 (61 FR 9972)
and the EA/RIR prepared for this action. Public comment on the proposed
action was invited through April 22, 1996. NMFS received 11 written
letters of comment. The comments are summarized and responded to below
in the response to comments section.
The only change from the proposed rule is a modification in the
opening date for the Western Regulatory Area from October 1 to
September 1 for the reasons stated below. This change is reflected in
Sec. 672.23(e), which establishes fishing seasons, and section 4 and
table 3 of the final 1996 harvest specifications.
At its January 1996 meeting, the Council considered opening date
options of September 1, September 15, and October 1 that would apply to
the third season in both the W/C Regulatory Areas. However, the Council
subsequently recommended that NMFS implement a modified proposal that
would establish separate third season opening dates of September 1 in
the Central Regulatory Area and October 1 in the Western Regulatory
Area. This modified proposal was submitted to the Council by a
coalition of Bering Sea-based processors and fishermen with the intent
of preserving the ability of Bering Sea-based vessels to fish in the
Western Regulatory Area after the closure of the Bering Sea pollock
non-roe season. The proposed rule included these separate opening dates
as recommended by the Council.
Based on changing circumstances in the pollock fishery and
information submitted during the comment period on the proposed rule,
NMFS has changed the final rule from the proposed rule to reflect a
single opening date of September 1 for both the W/C Regulatory Areas.
The reasons for this change are as follows: First, the Council at its
April 1996 meeting made a final recommendation that NMFS delay the
start of the Bering Sea pollock non-roe season from August 15 to
September 1 for both the inshore and offshore sectors. If approved,
this regulatory amendment would become effective for the 1996 pollock
non-roe season. In 1995 the inshore sector Bering Sea pollock non-roe
season lasted 39 days and NMFS expects the 1996 season to last
approximately as long. Delaying the Bering Sea pollock non-roe season
until September 1 is likely to extend the season into the first or
second week of October. Consequently, NMFS believes that an October 1
opening date for the Western Regulatory Area no longer holds any
particular advantage for the Bering Sea-based fleet, which was the only
sector of the industry that supported this particular opening date.
Second, NMFS has received extensive written comments from Western
Regulatory Area-based fishermen and processors who oppose an October 1
opening date for the Western Regulatory Area for safety reasons. This
sector of the industry suggests that because weather conditions are
likely to be worse in October, an October 1 opening date will pose
greater safety risks for
[[Page 27309]]
smaller vessels than would a September 1 opening date.
Third, NMFS has received extensive written comments from Western
Regulatory Area-based fishermen and processors who believe an October 1
opening date would cause them to be preempted by larger and more
numerous Bering Sea-based vessels. Although a delay in the Bering Sea
pollock non-roe season would largely eliminate these concerns, NMFS
believes that a compelling reason no longer exists to treat the Western
Regulatory Area separately from the rest of the GOA.
Finally, scheduling fisheries in various areas to operate
simultaneously will disperse effort resulting in more manageable
fisheries and a more equitable distribution of fishing opportunity. A
September 1 pollock opening date for the Western Regulatory Area would
bring the season for this area into line with the rest of the GOA, as
well as the Bering Sea if the Council's recommendation to delay the
pollock non-roe season is approved.
Regulatory Changes Made by This Action
This action combines the third and fourth quarterly allowances of
pollock TAC for the statistical areas of the W/C Regulatory Area into
single seasonal allowances equal to 50 percent of the annual pollock
TAC for each statistical area. This combined seasonal allowance will
become available on September 1. This action retains the requirements
that (1) within any fishing year, shortfalls in the harvest of one
seasonal allowance be proportionately added to subsequent seasonal
allowances, resulting in a sum for each seasonal allowance not to
exceed 150 percent of the original seasonal allowance; and (2) harvests
in excess of a seasonal allowance be deducted proportionately from
subsequent seasonal allowances.
Response to Comments
No comments opposed Amendment 45 in general (or supported retaining
the status quo of four quarterly allowances). Six letters of comment
from representatives for Western Regulatory Area-based pollock
fishermen and processors supported a September 1 opening date for this
area but opposed an October 1 opening date. One letter of comment from
a representative for Central Regulatory Area-based pollock fishermen
and processors supported a September 1 opening date for this area but
was neutral on the Western Regulatory Area opening date. No comments
were received that favored an October 1 opening date for the Western
Regulatory Area. The following paragraphs summarize and respond to the
comments received on the proposed rule.
Comment 1. Prior to the Council's decision at the January 1996
meeting to establish separate opening dates, no discussion or analysis
occurred of separate opening dates for the W/C Regulatory Areas. Both
the Council's Scientific and Statistical Committee and Advisory Panel
recommended that the Council establish a September 1 opening date for
both the W/C Regulatory Areas. In addition, no prior notice was
provided to the public that the Council was considering separate
opening dates. As a result, Western Regulatory Area-based fishermen did
not have adequate opportunity to comment on the effects of an October 1
opening date on their fleet.
Response. NMFS has changed the proposed rule to establish a single
opening date of September 1 for both the W/C Regulatory Areas.
Comment 2. Considerable support exists within the industry for
reconsidering the decision to separate the W/C Regulatory Area opening
dates, as evidenced by the 17 to 2 vote by the Advisory Panel at the
April 1996 Council meeting, in support of a simultaneous W/C Regulatory
opening date of September 1.
Response. See response to comment 1.
Comment 3. The Council's adoption of different opening dates for
the W/C Regulatory Areas was extremely unfair to Western Regulatory
Area fishermen who have sought to increase their involvement in the
administrative process. The Council's action was taken without any
public notice, with little or no understanding of potential impacts on
small boat fishermen and communities, and with no public discussion of
this unanticipated alternative by Council members or NMFS. This action
can best be described as a ``sneak attack'' because Western Regulatory
Area fishermen were not given a reasonable opportunity to defend
themselves on this issue.
Response. See response to comment 1.
Comment 4. When the Council and NMFS make decisions that result in
allocations among fishermen, both fundamental fairness and the law
dictate a heightened level of public participation and a strong
administrative record. This process is necessary so that the Council,
NMFS, and the Secretary of Commerce are fully informed of the potential
impacts of the proposed actions. Although case law allows a tainted
administrative record to be cured by subsequent comments and internal
Agency analysis of the objections raised, this ``after the fact''
procedure does not cure the fundamentally unfair nature of this
particular decision by the Council. NMFS should not attempt to cure
this tainted administrative record simply to justify an improperly
motivated decision.
Response. This comment is mute in light of NMFS' decision to adopt
a single opening date of September 1 for both the Western and Central
Regulatory Areas.
Comment 5. The EA/RIR did not evaluate the impacts of an October 1
Western Regulatory Area opening date on resident small-boat fishermen
or the coastal communities of the Western GOA which are dependent on
the flow of fish products for employment and local tax revenues. Nor
did the analysis address the possible loss of the October 1 third
trimester release to all fishermen if NMFS believes that the vessel
capacity will exceed the quota. A separate October 1 date for the
Western Regulatory Area was beyond the scope of the EA/RIR, and we
seriously question the legality of adopting a measure that was not
subject to a proper analytical or public review.
Response. See response to comment 4.
Comment 6. The proposed October 1 opening date for the Western
Regulatory Area is a substantial reallocation of the pollock resource,
which treats local small-boat fishermen unfairly. National standard 4
requires that any allocation of fishing privileges be done in a manner
that is fair and equitable to all fishermen. An October 1 opening will
invite massive participation by the Bering Sea-based pollock fleet to
the disadvantage of smaller vessels based in the Western Regulatory
Area. In addition, eliminating the July opening would effectively
eliminate this small boat fleet's fishery, which has occurred primarily
in the third quarter and secondarily in the fourth quarter of each
year. These vessels have traditionally and almost exclusively fished in
the third quarter (July 1) opening in the Western Regulatory Area and
will face increased safety risks if required to fish this quota in
October. If the July allowance is combined with the fourth quarter
allowance and exposed to the escalating fishing pressure of the entire
Bering Sea and GOA fleet, the impact will be to reallocate the entire
third quarter fishery from a resident small-boat fleet to the Dutch
Harbor and Kodiak fleets. The majority of these small Western
Regulatory Area-based vessels will be unable to establish Kodiak
markets to participate in the September 1 Central Regulatory Area
[[Page 27310]]
opening and their small size makes it impossible for them to
participate in the Bering Sea pollock non-roe season.
Response. See response to comment 1.
Comment 7. Delaying the third seasonal allowance in the Western
Regulatory Area until October 1 when the Bering Sea pollock fishery is
closed will greatly increase effort in the Western Regulatory Area.
This will make the fishery more difficult to manage and is in conflict
with one of the stated objectives of Amendment 45, easing the effort in
the GOA pollock fisheries. No substantive justification exists for how
the October 1 opening date satisfies the third and critical objective
of the proposed amendment.
Response. The changes made in the final rule which establish a
single opening date of September 1 for both the Central and Western
Regulatory Areas and the Council's April 1996 recommendation to delay
the Bering Sea pollock non-roe season until September 1, if adopted,
would result in a single opening date of September 1 for both the
Bering Sea and GOA.
Comment 8. An October 1 start date in the Western Regulatory Area
is nothing more than punishment to Sand Point Boats for political
reasons. These boats are the smallest boats in the pollock fleet.
Asking operators of these boats to start their fishery on October 1 is
to invite injuries or worse.
Response. See response to comment 1.
Comment 9. The decision to delay the Western Regulatory Area
opening until October 1 means the difference between a multi-day
fishery and a fishery that may well be measured in hours. This means
that local boats will have taken away from them a reasonable
opportunity to make a living so that bigger Kodiak and Dutch Harbor
boats can swoop in for a one-tow event.
Response. See response to comment 1.
Comment 10. The proposed October 1 opening date for the Western
Regulatory Area isolates one area and subjects it to uncontrollable
fishing pressure. The Bering Sea fleet no longer has to choose among
the entire W/C Regulatory Area during the last release of pollock. The
Kodiak-based fleet of large trawl vessels will be able to fish in the
Central Regulatory Area in September and then shift to the Western
Regulatory Area in October. The Western Regulatory Area will face not
only the local small-boat trawl fleet in October but the combined
Bering Sea and Kodiak-based trawl fleet as well. Whenever possible,
fisheries in various areas should be scheduled to operate in the same
time period to disperse effort. This makes for more manageable
fisheries and a more equitable distribution of opportunity.
Response. NMFS concurs. See response to comment 7.
Comment 11. If the October 1 opening date is approved, operators of
Western GOA plants estimate they will lose from 11 percent to 15
percent of the pollock that has traditionally been delivered to them.
Under the status quo, most of the third quarter pollock fishery in
Statistical Areas 610 and 620 was delivered to Western GOA plants. If
this opening is shifted to October 1, much of this quota will be
harvested instead by Bering Sea-based vessels and delivered to Bering
Sea-based plants.
Response. See response to comment 1. Changes to 1996 Harvest
Specifications
Final 1996 harvest specifications for GOA pollock were published in
the Federal Register on February 5, 1996 (61 FR 4304). The change from
quarterly allowances to three seasonal allowances of pollock TAC
amounts specified for the statistical areas of the W/C Regulatory Area
requires that the final 1996 specifications be amended. First, footnote
2 to Table 1 is revised to read as follows: ``Pollock is apportioned to
three statistical areas in the combined Western/Central Regulatory
Area, each of which is further divided into three seasonal allowances
(Table 3). In the Eastern Regulatory Area, pollock is not divided into
seasonal allowances.''
Second, page 4308 of the final 1996 specifications, section 4,
``Apportionments of Pollock TAC Among Regulatory Areas, Season, and
Between Inshore and Offshore Components,'' and Table 3 is amended as
follows to reflect the new seasonal allowances of pollock:
4. Apportionments of Pollock TAC Among Regulatory Areas, Seasons, and
Between Inshore and Offshore Components
In the GOA, pollock is apportioned by area, season, and inshore/
offshore components. Regulations at Sec. 672.20(a)(2)(iv) require that
the TAC for pollock in the combined W/C GOA be apportioned among
statistical areas; Shumagin (610), Chirikof (620), and Kodiak (630) in
proportion to known distributions of the pollock biomass. This measure
was intended to provide spatial distribution of the pollock harvest as
a sea lion protection measure. Each statistical area apportionment
would be further divided into three seasonal allowances (Table 3).
Within any fishing year, any unharvested amount of any seasonal
allowance of pollock TAC would be added in equal proportions to the
subsequent seasonal allowances, resulting in a sum for each seasonal
allowance that does not exceed 150 percent of the original seasonal
allowance. Similarly, harvests in excess of a seasonal allowance of TAC
would be deducted in equal proportions from the remaining seasonal
allowances of that fishing year. Directed fishing for pollock in the W/
C Regulatory Area (Statistical Areas 610, 620, and 630) may be
authorized in seasonal allowances beginning on January 1, June 1, and
September 1. The Eastern Regulatory Area pollock TAC of 2,810 metric
tons (mt) is not allocated among smaller areas or seasonal allowances.
Regulations at Sec. 672.20(a)(2)(v)(A) require that the domestic
annual processing (DAP) apportionment for pollock in all regulatory
areas and all seasonal allowances thereof be divided into inshore and
offshore components. One hundred percent of the pollock DAP in each
regulatory area is apportioned to the inshore component after
subtraction of amounts that are determined by the Director, Alaska
Region, NMFS (Regional Director) to be necessary to support the bycatch
needs of the offshore component in directed fisheries for other
groundfish species. The amount of pollock available for harvest by
vessels in the offshore component is that amount actually taken as
bycatch during directed fishing for groundfish species other than
pollock, up to the maximum retainable bycatch amounts allowed under
regulations at Sec. 672.20(g).
[[Page 27311]]
Table 3.--Distribution of Pollock in the Western and Central Regulatory Areas of the Gulf of Alaska (W/C GOA).
ABC for the W/C GOA is 52,000 mt. Biomass Distribution is Based on 1993 Survey Data. TACs are Equal to ABC.
Inshore and Offshore Allocations of Pollock are not Shown. ABCs and TACs are Rounded to the Nearest 10 mt.
----------------------------------------------------------------------------------------------------------------
Seasonal allowances \1\
Statistical Area Biomass 1996 TAC -----------------------------------
percent First Second Third
----------------------------------------------------------------------------------------------------------------
Shumagin (610)...................................... 49.0 25,480 6,370 6,370 12,740
Chirikof (620)...................................... 24.7 12,840 3,210 3,210 6,420
Kodiak (630)........................................ 26.3 13,680 3,420 3,420 6,840
-----------------------------------------------------------
Total......................................... 100.0 52,000 13,000 13,000 26,000
----------------------------------------------------------------------------------------------------------------
\1\ As established under paragraphs (e) and (f) of Sec. 672.23, the first, second, and third seasonal
allowances of W/C Regulatory Area pollock TAC amounts are available January 1 and June 1, and September 1,
respectively.
Classification
The Regional Director has determined that Amendment 45 is necessary
for the conservation and management of the groundfish fishery of the
GOA and that it is consistent with the Magnuson Act and other
applicable laws.
This rule has been determined to be not significant for the
purposes of E.O. 12866.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration when this rule was proposed that this
rule would not have a significant economic impact on a substantial
number of small entities. The reasons were published in the notice of
proposed rulemaking. As a result, a regulatory flexibility analysis was
not prepared.
Because NMFS would like to incorporate the text of this rule into a
comprehensive consolidation of the Federal regulations implementing the
Alaska fishery management plans expected to be published as a final
rule in the near future, NMFS is making this rule immediately
effective. This rule will not have any substantive impact until July 1,
1996. Consequently, under 5 U.S.C. 553(d)(3), it is unnecessary to
delay the effectiveness of it for 30 days.
List of Subjects in 50 CFR Part 672
Fisheries, Reporting and recordkeeping requirements.
Dated: May 23, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Serivce.
For the reasons set out in the preamble, 50 CFR part 672 is amended
as follows:
PART 672--GROUNDFISH OF THE GULF OF ALASKA
1. The authority citation for part 672 continues to read as
follows:
Authority: 16 U.S.C. 1801, et seq.
General Amendments
2. In Sec. 672.20, paragraph (a)(2)(iv); the first sentence of
paragraph (a)(2)(v)(A); and paragraph (c)(2) (i) and (ii) are revised
to read as follows:
Sec. 672.20 General limitations.
(a) * * *
(2) * * *
(iv) The TAC for pollock in the combined Western and Central
Regulatory Areas will be apportioned among Statistical Areas 610, 620,
and 630 in proportion to the distribution of the pollock biomass as
determined by the most recent NMFS surveys. Each apportionment will be
divided into three seasonal allowances of 25 percent, 25 percent, and
50 percent of the apportionment, respectively, corresponding to the
three fishing seasons defined at paragraph (e) of Sec. 672.23. Within
any fishing year, any unharvested amount of any seasonal allowance will
be added proportionately to all subsequent seasonal allowances,
resulting in a sum for each allowance not to exceed 150 percent of the
initial seasonal allowance. Within any fishing year, harvests in excess
of a seasonal allowance will be deducted proportionately from all
subsequent seasonal allowances.
(v) * * * (A) The DAP apportionment of pollock in all regulatory
areas will be allocated entirely to vessels catching pollock for
processing by the inshore component after subtraction of an amount that
is projected by the Regional Director to be caught by, or delivered to,
the offshore component incidental to directed fishing for other
groundfish species. * * *
* * * * *
(c) * * *
(2) * * * (i) Applicable after December 31, 1998. If the Regional
Director determines that the amount of a target species or ``other
species'' category apportioned to a fishery is likely to be reached,
the Regional Director may establish a directed fishing allowance for
that species or species group. The amount of a species or species group
apportioned to a fishery is the amount identified in the notice of
specifications as provided in paragraph (c)(1) of this section as these
amounts are revised by inseason adjustments, for that species or
species group, as identified by regulatory area, district or
statistical area and as further identified according to any allocation
of total allowable level of fishing level (TALFF), the apportionment
for joint venture processing (JVP), the apportionment for DAP, the
seasonal allowance of pollock and, if applicable, as further identified
by gear type. In establishing a directed fishing allowance, the
Regional Director shall consider the amount of that species or species
group or seasonal allowance of pollock that will be taken as incidental
catch in directed fishing for other species in the same regulatory area
or district. If the Regional Director establishes a directed fishing
allowance and that allowance is, or will be, reached before the end of
the fishing year or, with respect to pollock, before the end of the
season, NMFS will prohibit directed fishing for that species or species
group in the specified regulatory area, district or statistical area.
If directed fishing for a species or species group is prohibited, any
amount of that species or species group greater than the maximum
retainable bycatch amount, as calculated under paragraph (g) of this
section, may not be retained and must be treated as a prohibited
species under paragraph (e) of this section.
(ii) Applicable through December 31, 1998. If the Regional Director
determines that the amount of a target species or ``other species''
category apportioned to a fishery is likely to be reached, the Regional
Director may establish a directed fishing allowance for that species or
species group. The
[[Page 27312]]
amount of a species or species group apportioned to a fishery is the
amount identified in the specifications as provided in paragraph (c)(1)
of this section. These amounts are revised by inseason adjustments, for
a given species or species group, as identified by regulatory area,
district or statistical area, and as further identified according to
any allocation of TALFF, the apportionment for JVP, the apportionment
for DAP, the seasonal allowance of pollock or, with respect to Pacific
cod, to an allocation to the inshore or offshore component and, if
applicable, as further identified by gear type. In establishing a
directed fishing allowance, the Regional Director should consider the
amount of that species group, seasonal allowance of pollock, or
allocation of Pacific cod to the inshore or offshore component that
will be taken as incidental catch in directed fishing for other species
in the same regulatory area, district or statistical area. If the
Regional Director establishes a directed fishing allowance and that
allowance is or will be reached before the end of the fishing year or,
with respect to pollock, before the end of the season, NMFS will
prohibit directed fishing for the species or species group in the
specified regulatory area, district or statistical area. If directed
fishing for a species or species group is prohibited, any amount of
that species or species group greater than the maximum retainable
bycatch amount, as calculated under paragraph (g) of this section, may
not be retained and must be treated as a prohibited species under
paragraph (e) of this section.
* * * * *
3. In Sec. 672.23, paragraph (e) is revised to read as follows:
Sec. 672.23 Seasons.
* * * * *
(e) Subject to other provisions of this part, directed fishing for
pollock in the Western and Central Regulatory Areas of the Gulf of
Alaska is authorized only during the three seasons:
(1) From 0001, A.l.t., January 1 through 12 noon, A.l.t., April 1;
(2) From 1200, A.l.t., June 1 through 1200, A.l.t., July 1; and
(3) From 1200, A.l.t., September 1 through 2359 A.l.t., December
31.
Nomenclature Amendments
Sec. 672.20 [Amended]
4. In addition to the amendments set out above, in Sec. 672.20, in
paragraph (c)(1), remove all occurrences of the word ``quarterly'' and
add in their place the word ``seasonal''.
[FR Doc. 96-13594 Filed 5-30-96; 8:45 am]
BILLING CODE 3510-22-W
Complete official Federal Register PDF
FR Doc. 96-13591 Common Crop Insurance Regulations; Malting Barley Price and Quality Endorsement Crop Insurance Provisions; Correction
[Federal Register Volume 61, Number 106 (Friday, May 31, 1996)]
[Rules and Regulations]
[Pages 27244-27245]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13591]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Federal Crop Insurance Corporation
7 CFR Part 457
RIN 0563-AB24
Common Crop Insurance Regulations; Malting Barley Price and
Quality Endorsement Crop Insurance Provisions; Correction
AGENCY: Federal Crop Insurance Corporation, Department of Agriculture.
ACTION: Correcting amendments.
-----------------------------------------------------------------------
SUMMARY: This document contains technical corrections to the final
regulations, published Wednesday, March 6, 1996 (61 FR 8851),
concerning the insurance contract requirements under the Malting Barley
Price and Quality Endorsement crop provisions of the Common Crop
Insurance Policy.
EFFECTIVE DATE: May 30, 1996.
FOR FURTHER INFORMATION CONTACT: Rob Coultis, Program Analyst, Research
and Development Division, Product Development Branch, FCIC, at 9435
Holmes Road, Kansas City, MO 64131, telephone (816) 926-7730 (not a
toll-free call).
SUPPLEMENTARY INFORMATION:
Background
The final regulation that is the subject of these technical
corrections was intended to make available a new insurance coverage for
producers of malting barley. As published, the final regulations
contained an error in the calculation used to reduce the amount of
production to count when damaged production is accepted by a buyer for
malting purposes. As published, the quality adjustment factor used to
reduce the amount of damaged production is calculated by dividing an
established value of undamaged production (the maximum additional value
price election) by the price per bushel received for damaged
production. The application of this calculation will increase the
production to count, not
[[Page 27245]]
reduce it. To establish the appropriate factor for reducing the
production to count to take into consideration an amount of damaged
production, the regulation should have stated that the price per bushel
received for damaged production would be divided by the established
value of undamaged production.
Need for Correction
As published, the final regulations contain errors which may prove
to be misleading and are in need of clarification.
List of Subjects in 7 CFR Part 457
Malting Barley Crop Insurance.
PART 457--COMMON CROP INSURANCE REGULATIONS; REGULATIONS FOR THE
1991 AND SUBSEQUENT CONTRACT YEARS
Accordingly, 7 CFR Part 457 is corrected by making the following
correcting amendments:
1. On page 8856 in the second column, section 4(b)(2) of Option A
is corrected to read ``Dividing the price per bushel received for the
damaged production by the result of paragraph (1); and''
2. On page 8857 in the second column, section 4(b)(2) of Option B
is corrected to read ``Dividing the price per bushel received for the
damaged production by the result of paragraph (1); and''
Signed in Washington, D.C., on May 23, 1996.
Kenneth D. Ackerman,
Manager, Federal Crop Insurance Corporation.
[FR Doc. 96-13591 Filed 5-30-96; 8:45 am]
BILLING CODE 3410-FA-P
Complete official Federal Register PDF
FR Doc. 96-13557 Federal Motor Vehicle Safety Standards; Air Brake Systems
[Federal Register Volume 61, Number 106 (Friday, May 31, 1996)]
[Rules and Regulations]
[Pages 27288-27304]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13557]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 571
[Docket No. 96-050; Notice 1]
RIN 2127-AG31
Federal Motor Vehicle Safety Standards; Air Brake Systems
AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.
ACTION: Final rule; technical amendment.
-----------------------------------------------------------------------
SUMMARY: This document revises Standard No. 121, Air brake systems to
remove obsolete provisions and to update and reorganize the standard.
This revision substantially clarifies and simplifies this safety
standard without changing any of its substantive requirements.
EFFECTIVE DATE: This rule is effective March 1, 1997.
FOR FURTHER INFORMATION CONTACT: Mr. Richard Carter, Office of Vehicle
Safety Standards, NPS-11, National Highway Traffic Safety
Administration, 400 Seventh Street, SW., Washington, DC
[[Page 27289]]
20590. Telephone: (202) 366-5274. Fax: (202) 366-4329. For legal
issues: Mr. Marvin L. Shaw, Office of Chief Counsel, NCC-20, National
Highway Traffic Safety Administration, 400 Seventh Street, SW.,
Washington, DC 20590. Telephone: (202) 366-2992.
SUPPLEMENTARY INFORMATION: Pursuant to the March 4, 1995, directive,
``Regulatory Reinvention Initiative,'' from the President to the heads
of departments and agencies, the National Highway Traffic Safety
Administration (NHTSA) has undertaken a review of all its regulations
and directives. During the course of this review, the agency identified
several regulations that are potential candidates for amendment.
One of these regulations is Standard No. 121, Air brake systems.
There are two major types of changes. The first type of change involves
deleting obsolete provisions. For example, S5.3.3.2 of current Standard
No. 121 sets forth optional requirements about brake actuation time for
systems manufactured before May 3, 1991. Similarly, S6.1.8.1(a) sets
forth an optional burnish procedure for vehicles manufactured before
September 1, 1994. The second type of change involves updating the Code
of Federal Regulations to include the agency's recent amendments to
Standard No. 121. For instance, on March 10, 1995, NHTSA amended
Standard No. 121 to require air braked vehicles to be equipped with
antilock brake systems and to reinstate stopping distance requirements.
(60 FR 13216). Portions of these amendments were subsequently revised
on December 13, 1995, (60 FR 63965) and February 15, 1996, (61 FR
2412). Today's notice contains the agency's most recent amendments of
these provisions. In removing obsolete provisions and updating the
standard, the agency's goal is to clarify and simplify Standard No.
121, without changing any of its substantive requirements.
This rulemaking action responds to petitions for reconsideration
addressing the agency's antilock brake system rulemaking in which the
Heavy Duty Brake Manufacturers Council (HDBMC), the American Automobile
Manufacturers Association (AAMA), and Midland-Grau requested that the
agency publish a complete and updated version of Standard No. 121.
In rewriting Standard No. 121, a significant issue was what
effective date to select. A number of new requirements for Standard No.
121 will take effect in the next few years. Of particular note, the
requirements for antilock brake systems and for stopping distance tests
are being phased in for various vehicle types (e.g., truck tractors,
trailers, and single unit vehicles) between March 1, 1997, and March 1,
1998. As a result of these new amendments, the standard's requirements
vary significantly for different dates over the next two years.
After examining the current standard, NHTSA has concluded that
clarifying and simplifying Standard No. 121 can best be accomplished by
selecting an effective date of March 1, 1997, the date when truck
tractors must first comply with the new antilock brake system and
stopping distance requirements. Most of the changes in the regulatory
text delete obsolete requirements and provisions which are, or will be,
irrelevant by March 1, 1997.
This rulemaking action results in a more straightforward Standard
No. 121 that will take mandatory effect on March 1, 1997, with optional
compliance for vehicles manufactured before that date. Manufacturers
and other interested persons should continue to consult the current
Standard No. 121 concerning the additional compliance options that are
available before that date. While the existing standard is longer and
more complex than desirable, it is well understood by the industry.
Moreover, it is not clear that any effort to rewrite Standard No. 121
for an earlier effective date could be successful in achieving the goal
of a substantially clarified and simpler standard, given the many
additional complex provisions that would have to be retained.
The rewritten Standard No. 121 is organized as follows:
S1. Scope.
S2. Purpose.
S3. Application.
S4. Definitions.
S5. Requirements.
S5.1 Required equipment for trucks and buses.
S5.2 Required equipment for trailers.
S5.3 Service brakes--road tests.
S5.4 Service brakes--dynamometer tests.
S5.5 Service brakes--antilock systems.
S5.6 Parking brakes.
S5.7 Emergency brakes for trucks and buses.
S5.8 Emergency brakes for trailers.
S5.9 Final inspection.
S6. Conditions.
S6.1 Road test conditions.
S6.2 Dynamometer test conditions.
Rulemaking Analyses and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures
NHTSA has considered the impact of this rulemaking action under
E.O. 12866 and the Department of Transportation's regulatory policies
and procedures. This rulemaking document was not reviewed under E.O.
12866, ``Regulatory Planning and Review.'' This action has been
determined to be not ``significant'' under the Department of
Transportation's regulatory policies and procedures.
The purpose of this rewrite is to clarify and simplify the
requirements of Standard No. 121. This rewrite does not substantively
change the requirements of the standard. This means that the rulemaking
will not have any impacts on safety or the compliance costs for
manufacturers. Accordingly, a full regulatory evaluation has not been
prepared for this rulemaking.
Regulatory Flexibility Act
NHTSA has also considered the effects of this regulatory action
under the Regulatory Flexibility Act. I hereby certify that this
rulemaking will not have a significant economic impact on a substantial
number of small entities. For the reasons stated above, simplifying and
clarifying Standard No. 121 will not result in any economic impacts on
those vehicle manufacturers that are small entities. Further, since no
cost changes are associated with this rulemaking, small organizations
and small governmental entities should not be affected in their
capacity as purchasers of new vehicles.
National Environmental Policy Act
NHTSA has analyzed this rulemaking for the purposes of the National
Environmental Policy Act and determined that it has no significant
impact on the quality of human life.
Executive Order 12612 (Federalism)
NHTSA has analyzed this rulemaking in accordance with the
principles and criteria set forth in Executive Order 12612. NHTSA has
determined that this rulemaking does not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment.
Civil Justice Reform
This rule will not have any retroactive effect. Under 49 U.S.C.
30103, whenever a Federal motor vehicle safety standard is in effect, a
State may not adopt or maintain a safety standard applicable to the
same aspect of performance which is not identical to the Federal
standard, except to the extent that the state requirement imposes a
higher level of performance and applies only to vehicles procured for
the State's use. 49 U.S.C. 30161 sets forth a procedure for judicial
review of final rules establishing, amending or revoking Federal motor
vehicle safety standards. That section does not require submission of a
petition for
[[Page 27290]]
reconsideration or other administrative proceedings before parties may
file suit in court.
List of Subjects in 49 CFR Part 571
Imports, Motor vehicle safety, Motor vehicles, Rubber and rubber
products, Tires.
In consideration of the foregoing, NHTSA amends 49 CFR Part 571 as
follows:
PART 571 --FEDERAL MOTOR VEHICLE SAFETY STANDARDS
1. The authority citation for Part 571 continues to read as
follows:
Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166;
delegation of authority at 49 CFR 1.50.
2. Section 571.121 is revised to read as follows:
Sec. 571.121 Standard No. 121; Air brake systems.
S1. Scope. This standard establishes performance and equipment
requirements for braking systems on vehicles equipped with air brake
systems.
S2. Purpose. The purpose of this standard is to insure safe braking
performance under normal and emergency conditions.
S3. Application. This standard applies to trucks, buses, and
trailers equipped with air brake systems. However, it does not apply
to:
(a) Any trailer that has a width of more than 102.36 inches with
extendable equipment in the fully retracted position and is equipped
with two short track axles in a line across the width of the trailer.
(b) Any vehicle equipped with an axle that has a gross axle weight
rating (GAWR) of 29,000 pounds or more;
(c) Any truck or bus that has a speed attainable in 2 miles of not
more than 33 mph;
(d) Any truck that has a speed attainable in 2 miles of not more
than 45 mph, an unloaded vehicle weight that is not less than 95
percent of its gross vehicle weight rating (GVWR), and no capacity to
carry occupants other than the driver and operating crew;
(e) Any trailer that has a GVWR of more than 120,000 pounds and
whose body conforms to that described in the definition of heavy hauler
trailer set forth in S4;
(f) Any trailer that has an unloaded vehicle weight which is not
less than 95 percent of its GVWR; and
(g) Any load divider dolly.
S4. Definitions.
Agricultural commodity trailer means a trailer that is designed to
transport bulk agricultural commodities in off-road harvesting sites
and to a processing plant or storage location, as evidenced by skeletal
construction that accommodates harvest containers, a maximum length of
28 feet, and an arrangement of air control lines and reservoirs that
minimizes damage in field operations.
Air brake system means a system that uses air as a medium for
transmitting pressure or force from the driver control to the service
brake, including an air-over-hydraulic brake subsystem, but does not
include a system that uses compressed air or vacuum only to assist the
driver in applying muscular force to hydraulic or mechanical
components.
Air-over-hydraulic brake subsystem means a subsystem of the air
brake system that uses compressed air to transmit a force from the
driver control to a hydraulic brake system to actuate the service
brakes.
Antilock brake system or ABS means a portion of a service brake
system that automatically controls the degree of rotational wheel slip
during braking by:
(1) Sensing the rate of angular rotation of the wheels;
(2) Transmitting signals regarding the rate of wheel angular
rotation to one or more controlling devices which interpret those
signals and generate responsive controlling output signals; and
(3) Transmitting those controlling signals to one or more
modulators which adjust brake actuating forces in response to those
signals.
Auto transporter means a truck and a trailer designed for use in
combination to transport motor vehicles, in that the towing vehicle is
designed to carry cargo at a location other than the fifth wheel and to
load this cargo only by means of the towed vehicle.
Common diaphragm means a single brake chamber diaphragm which is a
component of the parking, emergency, and service brake systems.
Container chassis trailer means a semitrailer of skeleton
construction limited to a bottom frame, one or more axles, specially
built and fitted with locking devices for the transport of intermodal
shipping containers, so that when the chassis and container are
assembled, the units serve the same function as an over the road
trailer.
Directly controlled wheel means a wheel for which the degree of
rotational wheel slip is sensed, either at that wheel or on the axle
shaft for that wheel and corresponding signals are transmitted to one
or more modulators that adjust the brake actuating forces at that
wheel. Each modulator may also adjust the brake actuating forces at
other wheels that are on the same axle or in the same axle set in
response to the same signal or signals.
Full-treadle brake application means a brake application in which
the treadle valve pressure in any of the valve's output circuits
reaches 85 pounds per square inch (psi) within 0.2 seconds after the
application is initiated, or in which maximum treadle travel is
achieved within 0.2 seconds after the application is initiated.
Heavy hauler trailer means a trailer which has one or more of the
following characteristics, but which is not a container chassis
trailer:
(1) Its brake lines are designed to adapt to separation or
extension of the vehicle frame; or
(2) Its body consists only of a platform whose primary cargo-
carrying surface is not more than 40 inches above the ground in an
unloaded condition, except that it may include sides that are designed
to be easily removable and a permanent ``front end structure'' as that
term is used in Sec. 393.106 of this title.
Independently controlled wheel means a directly controlled wheel
for which the modulator does not adjust the brake actuating forces at
any other wheel on the same axle.
Indirectly controlled wheel means a wheel at which the degree of
rotational wheel slip is not sensed, but at which the modulator of an
antilock braking system adjusts its brake actuating forces in response
to signals from one or more sensed wheel(s).
Initial brake temperature means the average temperature of the
service brakes on the hottest axle of the vehicle 0.2 mile before any
brake application in the case of road tests, or 18 seconds before any
brake application in the case of dynamometer testing.
Intermodal shipping container means a reusable, transportable
enclosure that is especially designed with integral locking devices for
securing the container to the trailer to facilitate the efficient and
bulk shipping and transfer of goods by, or between various modes of
transport, such as highway, rail, sea and air.
Load divider dolly means a trailer composed of a trailer chassis
and one or more axles, with no solid bed, body, or container attached,
and which is designed exclusively to support a portion of the load on a
trailer or truck excluded from all the requirements of this standard.
Maximum drive-through speed means the highest possible constant
speed at which the vehicle can be driven through 200 feet of a 500-foot
radius curve arc without leaving the 12-foot lane.
[[Page 27291]]
Maximum treadle travel means the distance that the treadle moves
from its position when no force is applied to its position when the
treadle reaches a full stop.
Peak friction coefficient or PFC means the ratio of the maximum
value of braking test wheel longitudinal force to the simultaneous
vertical force occurring prior to wheel lockup, as the braking torque
is progressively increased.
Pulpwood trailer means a trailer that is designed exclusively for
harvesting logs or pulpwood and constructed with a skeletal frame with
no means for attachment of a solid bed, body, or container, and with an
arrangement of air control lines and reservoirs designed to minimize
damage in off-road operations.
Straddle trailer means a trailer that is designed to transport bulk
agricultural commodities from the harvesting location as evidenced by a
framework that is driven over the cargo and lifting arms that suspend
the cargo for transit.
Wheel lockup means 100 percent wheel slip.
S5. Requirements. Each vehicle shall meet the following
requirements under the conditions specified in S6.
S5.1 Required equipment for trucks and buses. Each truck and bus
shall have the following equipment:
S5.1.1 Air compressor. An air compressor of sufficient capacity to
increase air pressure in the supply and service reservoirs from 85 psi
to 100 psi when the engine is operating at the vehicle manufacturer's
maximum recommended r.p.m. within a time, in seconds, determined by the
quotient (Actual reservoir capacity x 25) / Required reservoir
capacity.
S5.1.1.1 Air compressor cut-in pressure. The air compressor
governor cut-in pressure shall be 100 psi or greater.
S5.1.2 Reservoirs. One or more service reservoir systems, from
which air is delivered to the brake chambers, and either an automatic
condensate drain valve for each service reservoir or a supply reservoir
between the service reservoir system and the source of air pressure.
S5.1.2.1 The combined volume of all service reservoirs and supply
reservoirs shall be at least 12 times the combined volume of all
service brake chambers. For each brake chamber type having a full
stroke at least as great as the first number in Column 1 of Table V,
but no more than the second number in Column 1 of Table V, the volume
of each brake chamber for purposes of calculating the required combined
service and supply reservoir volume shall be either that specified in
Column 2 of Table V or the actual volume of the brake chamber at
maximum travel of the brake piston or pushrod, whichever is lower. The
volume of a brake chamber not listed in Table V is the volume of the
brake chamber at maximum travel of the brake piston or pushrod. The
reservoirs of the truck portion of an auto transporter need not meet
this requirement for reservoir volume.
S5.1.2.2 Each reservoir shall be capable of withstanding an
internal hydrostatic pressure of five times the compressor cutout
pressure or 500 psi, whichever is greater, for 10 minutes.
S5.1.2.3 Each service reservoir system shall be protected against
loss of air pressure due to failure or leakage in the system between
the service reservoir and the source of air pressure, by check valves
or equivalent devices whose proper functioning can be checked without
disconnecting any air line or fitting.
S5.1.2.4 Each reservoir shall have a condensate drain valve that
can be manually operated.
S5.1.3 Towing vehicle protection system. If the vehicle is
intended to tow another vehicle equipped with air brakes, a system to
protect the air pressure in the towing vehicle from the effects of a
loss of air pressure in the towed vehicle.
S5.1.4 Pressure gauge. A pressure gauge in each service brake
system, readily visible to a person seated in the normal driving
position, that indicates the service reservoir system air pressure. The
accuracy of the gauge shall be within plus or minus 7 percent of the
compressor cut-out pressure.
S5.1.5 Warning signal. A signal, other than a pressure gauge, that
gives a continuous warning to a person in the normal driving position
when the ignition is in the ``on'' (``run'') position and the air
pressure in the service reservoir system is below 60 psi. The signal
shall be either visible within the driver's forward field of view, or
both audible and visible.
S5.1.6 Antilock brake system.
S5.1.6.1(a) Each single-unit vehicle manufactured on or after March
1, 1998, shall be equipped with an antilock brake system that directly
controls the wheels of at least one front axle and the wheels of at
least one rear axle of the vehicle. Wheels on other axles of the
vehicle may be indirectly controlled by the antilock brake system.
(b) Each truck tractor manufactured on or after March 1, 1997,
shall be equipped with an antilock brake system that directly controls
the wheels of at least one front axle and the wheels of at least one
rear axle of the vehicle, with the wheels of at least one axle being
independently controlled. Wheels on other axles of the vehicle may be
indirectly controlled by the antilock brake system. A truck tractor
shall have no more than three wheels controlled by one modulator.
S5.1.6.2 Antilock malfunction signal and circuit.
(a) Each truck tractor manufactured on or after March 1, 1997, and
each single unit vehicle manufactured on or after March 1, 1998, shall
be equipped with an indicator lamp, mounted in front of and in clear
view of the driver, which is activated whenever there is a malfunction
that affects the generation or transmission of response or control
signals in the vehicle's antilock brake system. The indicator lamp
shall remain activated as long as such a malfunction exists, whenever
the ignition (start) switch is in the ``on'' (``run'') position,
whether or not the engine is running. Each message about the existence
of such a malfunction shall be stored in the antilock brake system
after the ignition switch is turned to the ``off'' position and
automatically reactivated when the ignition switch is again turned to
the ``on'' (``run'') position. The indicator lamp shall also be
activated as a check of lamp function whenever the ignition is turned
to the ``on'' (``run'') position. The indicator lamp shall be
deactivated at the end of the check of lamp function unless there is a
malfunction or a message about a malfunction that existed when the key
switch was last turned to the ``off'' position.
(b) Each truck tractor manufactured on or after March 1, 2001, and
each single unit vehicle manufactured on or after March 1, 2001, that
is equipped to tow another air-braked vehicle, shall be equipped with
an electrical circuit that is capable of transmitting a malfunction
signal from the antilock brake system(s) on one or more towed
vehicle(s) (e.g., trailer(s) and dolly(ies)) to the trailer ABS
malfunction lamp in the cab of the towing vehicle, and shall have the
means for connection of this electrical circuit to the towed vehicle.
Each such truck tractor and single unit vehicle shall also be equipped
with an indicator lamp, separate from the lamp required in S5.1.6.2(a),
mounted in front of and in clear view of the driver, which is activated
whenever the malfunction signal circuit described above receives a
signal indicating an ABS malfunction on one or more towed vehicle(s).
The indicator lamp shall remain activated as long as an ABS malfunction
signal from one or more towed vehicle(s) is present, whenever the
ignition (start) switch is in the ``on'' (``run'') position, whether or
[[Page 27292]]
not the engine is running. The indicator lamp shall also be activated
as a check of lamp function whenever the ignition is turned to the
``on'' (``run'') position. The indicator lamp shall be deactivated at
the end of the check of lamp function unless a trailer ABS malfunction
signal is present.
S5.1.6.3 Antilock power circuit for towed vehicles. Each truck
tractor manufactured on or after March 1, 1997, and each single unit
vehicle manufactured on or after March 1, 1998, that is equipped to tow
another air-braked vehicle shall be equipped with one or more
electrical circuits that provide continuous power to the antilock
system on the towed vehicle or vehicles whenever the ignition (start)
switch is in the ``on'' (``run'') position. Such a circuit shall be
adequate to enable the antilock system on each towed vehicle to be
fully operable.
S5.1.7 Service brake stop lamp switch. A switch that lights the
stop lamps when the service brake control is statically depressed to a
point that produces a pressure of 6 psi or less in the service brake
chambers.
S5.1.8 Brake distribution and automatic adjustment. Each vehicle
shall be equipped with a service brake system acting on all wheels.
(a) Brake adjuster. Wear of the service brakes shall be compensated
for by means of a system of automatic adjustment. When inspected
pursuant to S5.9, the adjustment of the service brakes shall be within
the limits recommended by the vehicle manufacturer.
(b) Brake indicator. For each brake equipped with an external
automatic adjustment mechanism and having an exposed pushrod, the
condition of service brake under-adjustment shall be displayed by a
brake adjustment indicator that is discernible when viewed with 20/40
vision from a location adjacent to or underneath the vehicle, when
inspected pursuant to S5.9.
S5.2 Required equipment for trailers. Each trailer shall have the
following equipment:
S5.2.1 Reservoirs. One or more reservoirs to which the air is
delivered from the towing vehicle.
S5.2.1.1 The total volume of each service reservoir shall be at
least eight times the combined volume of all service brake chambers
serviced by that reservoir. For each brake chamber type having a full
stroke at least as great as the first number in Column 1 of Table V,
but no more than the second number in column 1, the volume of each
brake chamber for purposes of calculating the required total service
reservoir volume shall be either the number specified in Column 2 of
Table V or the actual volume of the brake chamber at maximum travel of
the brake piston or pushrod, whichever is lower. The volume of a brake
chamber not listed in Table V is the volume of the brake chamber at
maximum travel of the brake piston or pushrod. The reservoirs on a
heavy hauler trailer and the trailer portion of an auto transporter
need not meet this requirement for reservoir volume.
S5.2.1.2 Each reservoir shall be capable of withstanding an
internal hydrostatic pressure of 500 psi for 10 minutes.
S5.2.1.3 Each reservoir shall have a condensate drain valve that
can be manually operated.
S5.2.1.4 Each service reservoir shall be protected against loss of
air pressure due to failure or leakage in the system between the
service reservoir and its source of air pressure by check valves or
equivalent devices.
S5.2.2 Brake distribution and automatic adjustment. Each vehicle
shall be equipped with a service brake system acting on all wheels.
(a) Brake adjuster. Wear of the service brakes shall be compensated
for by means of a system of automatic adjustment. When inspected
pursuant to S5.9, the adjustment of the service brakes shall be within
the limits recommended by the vehicle manufacturer.
(b) Brake indicator. For each brake equipped with an external
automatic adjustment mechanism and having an exposed pushrod, the
condition of service brake under-adjustment shall be displayed by a
brake adjustment indicator in a manner that is discernible when viewed
with 20/40 vision from a location adjacent to or underneath the
vehicle, when inspected pursuant to S5.9.
S5.2.3 Antilock brake system.
S5.2.3.1(a) Each semitrailer (including a trailer converter dolly)
manufactured on or after March 1, 1998, shall be equipped with an
antilock brake system that directly controls the wheels of at least one
axle of the vehicle. Wheels on other axles of the vehicle may be
indirectly controlled by the antilock brake system.
(b) Each full trailer manufactured on or after March 1, 1998, shall
be equipped with an antilock brake system that directly controls the
wheels of at least one front axle of the vehicle and at least one rear
axle of the vehicle. Wheels on other axles of the vehicle may be
indirectly controlled by the antilock brake system.
S5.2.3.2 Antilock malfunction signal. Each trailer (including a
trailer converter dolly) manufactured on or after March 1, 2001, that
is equipped with an antilock brake system shall be equipped with an
electrical circuit that is capable of signaling a malfunction in the
trailer's antilock brake system, and shall have the means for
connection of this antilock brake system malfunction signal circuit to
the towing vehicle. The electrical circuit need not be separate or
dedicated exclusively to this malfunction signaling function. The
signal shall be present whenever there is a malfunction that affects
the generation or transmission of response or control signals in the
trailer's antilock brake system. The signal shall remain present as
long as the malfunction exists, whenever power is supplied to the
antilock brake system. Each message about the existence of such a
malfunction shall be stored in the antilock brake system whenever power
is no longer supplied to the system, and the malfunction signal shall
be automatically reactivated whenever power is again supplied to the
trailer's antilock brake system. In addition, each trailer manufactured
on or after March 1, 2001, that is designed to tow other air-brake
equipped trailers shall be capable of transmitting a malfunction signal
from the antilock brake systems of additional trailers it tows to the
vehicle towing it.
S5.2.3.3 Antilock malfunction indicator. In addition to the
requirements of S5.2.3.2, each trailer (including a trailer converter
dolly) manufactured on or after March 1, 1998, and before March 1,
2009, shall be equipped with an external indicator lamp that is
activated whenever there is a malfunction that affects the generation
or transmission of response or control signals in the trailer's
antilock brake system. The indicator lamp shall remain activated as
long as such a malfunction exists, whenever power is supplied to the
antilock brake system. Each message about the existence of such a
malfunction shall be stored in the antilock brake system whenever power
is no longer supplied to the system, and the malfunction signal shall
be automatically reactivated when power is again supplied to the
trailer's antilock brake system. The indicator lamp shall also be
activated as a check of lamp function whenever power is supplied to the
antilock brake system and the vehicle is stationary. The indicator lamp
shall be deactivated at the end of the check of lamp function unless
there is a malfunction or a message about a malfunction that existed
when power
[[Page 27293]]
was last supplied to the antilock brake system.
S5.3 Service brakes--road tests. The service brake system on each
truck tractor manufactured before March 1, 1997, shall, under the
conditions of S6, meet the requirements of S5.3.3 and S5.3.4, when
tested without adjustments other than those specified in this standard.
The service brake system on each truck tractor manufactured on or after
March 1, 1997, shall, under the conditions of S6, meet the requirements
of S5.3.1, S5.3.3, S5.3.4, and S5.3.6, when tested without adjustments
other than those specified in this standard. The service brake system
on each bus and truck (other than a truck tractor) manufactured before
March 1, 1998, shall, under the conditions of S6, meet the requirements
of S5.3.3, and S5.3.4, when tested without adjustments other than those
specified in this standard. The service brake system on each bus and
truck (other than a truck tractor) manufactured on or after March 1,
1998, shall, under the conditions of S6, meet the requirements of
S5.3.1, S5.3.3, and S5.3.4 when tested without adjustments other than
those specified in this standard. The service brake system on each
trailer shall, under the conditions of S6, meet the requirements of
S5.3.3, S5.3.4, and S5.3.5 when tested without adjustments other than
those specified in this standard. However, a heavy hauler trailer and
the truck and trailer portions of an auto transporter need not meet the
requirements of S5.3.
S5.3.1 Stopping distance--trucks and buses. When stopped six times
for each combination of vehicle type, weight, and speed specified in
S5.3.1.1, in the sequence specified in Table I, each truck tractor
manufactured on or after March 1, 1997, and each single unit vehicle
manufactured on or after March 1, 1998, shall stop at least once in not
more than the distance specified in Table II, measured from the point
at which movement of the service brake control begins, without any part
of the vehicle leaving the roadway, and with wheel lockup permitted
only as follows:
(a) At vehicle speeds above 20 mph, any wheel on a nonsteerable
axle other than the two rearmost nonliftable, nonsteerable axles may
lock up, for any duration. The wheels on the two rearmost nonliftable,
nonsteerable axles may lock up according to S5.3.1(b).
(b) At vehicle speeds above 20 mph, one wheel on any axle or two
wheels on any tandem may lock up for any duration.
(c) At vehicle speeds above 20 mph, any wheel not permitted to lock
in S5.3.1 (a) or (b) may lock up repeatedly, with each lockup occurring
for a duration of one second or less.
(d) At vehicle speeds of 20 mph or less, any wheel may lock up for
any duration.
S5.3.1.1 Stop the vehicle from 60 mph on a surface with a peak
friction coefficient of 0.9 with the vehicle loaded as follows:
(a) Loaded to its GVWR,
(b) In the truck tractor only configuration plus up to 500 lbs.,
and
(c) At its unloaded vehicle weight (except for truck tractors) plus
up to 500 lbs. (including driver and instrumentation). If the speed
attainable in two miles is less than 60 mph, vehicle shall stop from a
speed in Table II that is 4 to 8 mph less than the speed attainable in
2 miles.
S5.3.2 [Reserved]
S5.3.3 Brake actuation time. Each service brake system shall meet
the requirements of S5.3.3.1 (a) and (b).
S5.3.3.1(a) With an initial service reservoir system air pressure
of 100 psi, the air pressure in each brake chamber shall, when measured
from the first movement of the service brake control, reach 60 psi in
not more than 0.45 second in the case of trucks and buses, 0.50 second
in the case of trailers, other than trailer converter dollies, designed
to tow another vehicle equipped with air brakes, 0.55 second in the
case of trailer converter dollies, and 0.60 second in the case of
trailers other than trailers designed to tow another vehicle equipped
with air brakes. A vehicle designed to tow another vehicle equipped
with air brakes shall meet the above actuation time requirement with a
50-cubic-inch test reservoir connected to the control line output
coupling. A trailer, including a trailer converter dolly, shall meet
the above actuation time requirement with its control line input
coupling connected to the test rig shown in Figure 1.
(b) For a vehicle that is designed to tow another vehicle equipped
with air brakes, the pressure in the 50-cubic-inch test reservoir
referred to in S5.3.3.1(a) shall, when measured from the first movement
of the service brake control, reach 60 psi not later than the time the
fastest brake chamber on the vehicle reaches 60 psi or, at the option
of the manufacturer, in not more than 0.35 second in the case of trucks
and buses, 0.55 second in the case of trailer converter dollies, and
0.50 second in the case of trailers other than trailer converter
dollies.
S5.3.4 Brake release time. Each service brake system shall meet
the requirements of S5.3.4.1 (a) and (b).
S5.3.4.1(a) With an initial service brake chamber air pressure of
95 psi, the air pressure in each brake chamber shall, when measured
from the first movement of the service brake control, fall to 5 psi in
not more than 0.55 second in the case of trucks and buses; 1.00 second
in the case of trailers, other than trailer converter dollies, designed
to tow another vehicle equipped with air brakes; 1.10 seconds in the
case of trailer converter dollies; and 1.20 seconds in the case of
trailers other than trailers designed to tow another vehicle equipped
with air brakes. A vehicle designated to tow another vehicle equipped
with air brakes shall meet the above release time requirement with a
50-cubic-inch test reservoir connected to the control line output
coupling. A trailer, including a trailer converter dolly, shall meet
the above release time requirement with its control line input coupling
connected to the test rig shown in Figure 1.
(b) For vehicles designed to tow another vehicle equipped with air
brakes, the pressure in the 50-cubic-inch test reservoir referred to in
S5.3.4.1(a) shall, when measured from the first movement of the service
brake control, fall to 5 psi in not more than 0.75 seconds in the case
of trucks and buses, 1.10 seconds in the case of trailer converter
dollies, and 1.00 seconds in the case of trailers other than trailer
converter dollies.
S5.3.5 Control signal pressure differential--converter dollies and
trailers designed to tow another vehicle equipped with air brakes.
(a) For a trailer designed to tow another vehicle equipped with air
brakes, the pressure differential between the control line input
coupling and a 50-cubic-inch test reservoir attached to the control
line output coupling shall not exceed the values specified in S5.3.5(a)
(1), (2), and (3) under the conditions specified in S5.3.5(b) (1)
through (4):
(1) 1 psi at all input pressures equal to or greater than 5 psi,
but not greater than 20 psi;
(2) 2 psi at all input pressures equal to or greater than 20 psi
but not greater than 40 psi; and
(3) Not more than a 5-percent differential at any input pressure
equal to or greater than 40 psi.
(b) The requirements in S5.3.5(a) shall be met--
(1) When the pressure at the input coupling is steady, increasing
or decreasing;
(2) When air is applied to or released from the control line input
coupling using the trailer test rig shown in Figure 1;
(3) With a fixed orifice consisting of a 0.0180 inch diameter hole
(no. 77 drill bit) in a 0.032 inch thick disc installed
[[Page 27294]]
in the control line between the trailer test rig coupling and the
vehicle's control line input coupling; and
(4) Operating the trailer test rig in the same manner and under the
same conditions as it is operated during testing to measure brake
actuation and release times, as specified in S5.3.3 and S5.3.4, except
for the installation of the orifice in the control line to restrict
airflow rate.
S5.3.6 Stability and control during braking--truck tractors. When
stopped four consecutive times for each combination of weight, speed,
and road conditions specified in S5.3.6.1 and S5.3.6.2, each truck
tractor manufactured on or after March 1, 1997, shall stop at least
three times within the 12-foot lane, without any part of the vehicle
leaving the roadway.
S5.3.6.1 Using a full-treadle brake application for the duration
of the stop, stop the vehicle from 30 mph or 75 percent of the maximum
drive-through speed, whichever is less, on a 500-foot radius curved
roadway with a wet level surface having a peak friction coefficient of
0.5 when measured on a straight or curved section of the curved roadway
using an American Society for Testing and Materials (ASTM) E1136
standard reference tire, in accordance with ASTM Method E1337-90, at a
speed of 40 mph, with water delivery.
S5.3.6.2 Stop the vehicle with the vehicle
(a) Loaded to its GVWR, and
(b) At its unloaded weight plus up to 500 pounds (including driver
and instrumentation), or at the manufacturer's option, at its unloaded
weight plus up to 500 pounds (including driver and instrumentation) and
plus not more than an additional 1000 pounds for a roll bar structure
on the vehicle.
S5.4 Service brake system--dynamometer tests. When tested without
prior road testing, under the conditions of S6.2, each brake assembly
shall meet the requirements of S5.4.1, S5.4.2, and S5.4.3 when tested
in sequence and without adjustments other than those specified in the
standard. For purposes of the requirements of S5.4.2 and S5.4.3, an
average deceleration rate is the change in velocity divided by the
deceleration time measured from the onset of deceleration.
S5.4.1 Brake retardation force. The sum of the retardation forces
exerted by the brakes on each vehicle designed to be towed by another
vehicle equipped with air brakes shall be such that the quotient sum of
the brake retardation forces / sum of GAWR's relative to brake chamber
air pressure, and shall have values not less than those shown in Column
1 of Table III. Retardation force shall be determined as follows:
S5.4.1.1 After burnishing the brake pursuant to S6.2.6, retain the
brake assembly on the inertia dynamometer. With an initial brake
temperature between 125 deg.F. and 200 deg.F., conduct a stop from 50
m.p.h., maintaining brake chamber air pressure at a constant 20 psi.
Measure the average torque exerted by the brake from the time the
specified air pressure is reached until the brake stops and divide by
the static loaded tire radius specified by the tire manufacturer to
determine the retardation force. Repeat the procedure six times,
increasing the brake chamber air pressure by 10 psi each time. After
each stop, rotate the brake drum or disc until the temperature of the
brake falls to between 125 deg.F. And 200 deg.F.
S5.4.2 Brake power. When mounted on an inertia dynamometer, each
brake shall be capable of making 10 consecutive decelerations at an
average rate of 9 f.p.s.p.s. from 50 m.p.h. to 15 m.p.h., at equal
intervals of 72 seconds, and shall be capable of decelerating to a stop
from 20 m.p.h. at an average deceleration rate of 14 f.p.s.p.s. 1
minute after the 10th deceleration. The series of decelerations shall
be conducted as follows:
S5.4.2.1 With an initial brake temperature between 150 deg.F. and
200 deg.F. for the first brake application, and the drum or disc
rotating at a speed equivalent to 50 m.p.h., apply the brake and
decelerate at an average deceleration rate of 9 f.p.s.p.s. to 15 m.p.h.
Upon reaching 15 m.p.h., accelerate to 50 m.p.h. and apply the brake
for a second time 72 seconds after the start of the first application.
Repeat the cycle until 10 decelerations have been made. The service
line air pressure shall not exceed 100 psi during any deceleration.
S5.4.2.2 One minute after the end of the last deceleration
required by S5.4.2.1 and with the drum or disc rotating at a speed of
20 m.p.h., decelerate to a stop at an average deceleration rate of 14
f.p.s.p.s.
S5.4.3 Brake recovery. Except as provided in S5.4.3(a) and (b),
starting two minutes after completing the tests required by S5.4.2, a
vehicle's brake shall be capable of making 20 consecutive stops from 30
mph at an average deceleration rate of 12 f.p.s.p.s., at equal
intervals of one minute measured from the start of each brake
application. The service line air pressure needed to attain a rate of
12 f.p.s.p.s. shall be not more than 85 lb/in\2\, and not less than
20lb/in2 for a brake not subject to the control of an antilock
system, or 12 lb/in2 for a brake subject to the control of an
antilock system.
(a) Notwithstanding S5.4.3, neither front axle brake of a truck-
tractor is subject to the requirements set forth in S5.4.3.
(b) Notwithstanding S5.4.3, neither front axle brake of a bus or a
truck other than a truck-tractor is subject to the requirement set
forth in S5.4.3 prohibiting the service line air pressure from being
less than 20 lb/in2 for a brake not subject to the control of an
antilock system or 12 lb/in2 for a brake subject to the control of
an antilock system.
S5.5 Antilock system.
S5.5.1 Antilock system malfunction. On a truck tractor
manufactured on or after March 1, 1997, that is equipped with an
antilock brake system and a single unit vehicle manufactured on or
after March 1, 1998, that is equipped with an antilock brake system, a
malfunction that affects the generation or transmission of response or
control signals of any part of the antilock system shall not increase
the actuation and release times of the service brakes.
S5.5.2 Antilock system power--trailers. On a trailer (including a
trailer converter dolly) manufactured on or after March 1, 1998, that
is equipped with an antilock system that requires electrical power for
operation, the power shall be obtained from the towing vehicle through
one or more electrical circuits which provide continuous power whenever
the powered vehicle's ignition (start) switch is in the ``on''
(``run'') position. The antilock system shall automatically receive
power from the stoplamp circuit, if the primary circuit or circuits are
not functioning. Each trailer (including a trailer converter dolly)
manufactured on or after March 1, 1998, that is equipped to tow another
air-braked vehicle shall be equipped with one or more circuits which
provide continuous power to the antilock system on the vehicle(s) it
tows. Such circuits shall be adequate to enable the antilock system on
each towed vehicle to be fully operable.
S5.6 Parking brakes.
(a) Except as provided in S5.6(b) and S5.6(c), each vehicle other
than a trailer converter dolly shall have a parking brake system that
under the conditions of S6.1 meets the requirements of:
(1) S5.6.1 or S5.6.2, at the manufacturer's option, and
(2) S5.6.3, S5.6.4, S5.6.5, and S5.6.6.
(b) At the option of the manufacturer, for vehicles equipped with
brake systems which incorporate a common diaphragm, the performance
requirements specified in S5.6(a) which must be met with any single
leakage-type failure in a common diaphragm
[[Page 27295]]
may instead be met with the level of leakage-type failure determined in
S5.6.7. The election of this option does not affect the performance
requirements specified in S5.6(a) which apply with single leakage-type
failures other than failures in a common diaphragm.
(c) At the option of the manufacturer, the trailer portion of any
agricultural commodity trailer, heavy hauler trailer, or pulpwood
trailer may meet the requirements of Sec. 393.43 of this title instead
of the requirements of S5.6(a).
S5.6.1 Static retardation force. With all other brakes made
inoperative, during a static drawbar pull in a forward or rearward
direction, the static retardation force produced by the application of
the parking brakes shall be:
(a) In the case of a vehicle other than a truck-tractor that is
equipped with more than two axles, such that the quotient static
retardation force/GAWR is not less than 0.28 for any axle other than a
steerable front axle; and
(b) In the case of a truck-tractor that is equipped with more than
two axles, such that the quotient static retardation force/GVWR is not
less than 0.14.
S5.6.2 Grade holding. With all parking brakes applied, the vehicle
shall remain stationary facing uphill and facing downhill on a smooth,
dry portland cement concrete roadway with a 20-percent grade, both
(a) When loaded to its GVWR, and
(b) At its unloaded vehicle weight plus 500 pounds (including
driver and instrumentation).
S5.6.3 Application and holding. Each parking brake system shall
meet the requirements of S5.6.3.1 through S5.6.3.4.
S5.6.3.1 The parking brake system shall be capable of achieving
the minimum performance specified either in S5.6.1 or S5.6.2 with any
single leakage-type failure, in any other brake system, of a part
designed to contain compressed air or brake fluid (excluding failure of
a component of a brake chamber housing but including failure of any
brake chamber diaphragm that is part of any other brake system
including a diaphragm which is common to the parking brake system and
any other brake system), when the pressures in the vehicle's parking
brake chambers are at the levels determined in S5.6.3.4.
S5.6.3.2 A mechanical means shall be provided that, after a
parking brake application is made with the pressures in the vehicle's
parking brake chambers at the levels determined in S5.6.3.4, and all
air and fluid pressures in the vehicle's braking systems are then bled
down to zero, and without using electrical power, holds the parking
brake application with sufficient parking retardation force to meet the
minimum performance specified in S5.6.3.1 and in either S5.6.1 or
S5.6.2.
S5.6.3.3 For trucks and buses, with an initial reservoir system
pressure of 100 psi and, if designed to tow a vehicle equipped with air
brakes, with a 50 cubic inch test reservoir connected to the supply
line coupling, no later than three seconds from the time of actuation
of the parking brake control, the mechanical means referred to in
S5.6.3.2 shall be actuated. For trailers, with the supply line
initially pressurized to 100 psi using the supply line portion of the
trailer test rig (Figure 1) and, if designed to tow a vehicle equipped
with air brakes, with a 50 cubic inch test reservoir connected to the
rear supply line coupling, no later than three seconds from the time
venting to the atmosphere of the front supply line coupling is
initiated, the mechanical means referred to in S5.6.3.2 shall be
actuated. This requirement shall be met for trucks, buses and trailers
both with and without any single leakage-type failure, in any other
brake system, of a part designed to contain compressed air or brake
fluid (consistent with the parenthetical phrase specified in S5.6.3.1).
S5.6.3.4 The parking brake chamber pressures for S5.6.3.1 and
S5.6.3.2 are determined as follows. For trucks and buses, with an
initial reservoir system pressure of 100 psi and, if designed to tow a
vehicle equipped with air brakes, with a 50 cubic inch test reservoir
connected to the supply line coupling, any single leakage type failure,
in any other brake system, of a part designed to contain compressed air
or brake fluid (consistent with the parenthetical phrase specified in
S5.6.3.1), is introduced in the brake system. The parking brake control
is actuated and the pressures in the vehicle's parking brake chambers
are measured three seconds after that actuation is initiated. For
trailers, with the supply line initially pressurized to 100 psi using
the supply line portion of the trailer test rig (Figure 1) and, if
designed to tow a vehicle equipped with air brakes, with a 50 cubic
inch test reservoir connected to the rear supply line coupling, any
single leakage type failure, in any other brake system, of a part
designed to contain compressed air or brake fluid (consistent with the
parenthetical phrase specified in S5.6.3.1), is introduced in the brake
system. The front supply line coupling is vented to the atmosphere and
the pressures in the vehicle's parking brake chambers are measured
three seconds after that venting is initiated.
S5.6.4 Parking brake control--trucks and buses. The parking brake
control shall be separate from the service brake control. It shall be
operable by a person seated in the normal driving position. The control
shall be identified in a manner that specifies the method of control
operation. The parking brake control shall control the parking brakes
of the vehicle and of any air braked vehicle that it is designed to
tow.
S5.6.5 Release Performance. Each parking brake system shall meet
the requirements specified in S5.6.5.1 through S5.6.5.4.
S5.6.5.1 For trucks and buses, with initial conditions as
specified in S5.6.5.2, at all times after an application actuation of
the parking brake control, and with any subsequent level of pressure,
or combination of levels of pressure, in the reservoirs of any of the
vehicle's brake systems, no reduction in parking brake retardation
force shall result from a release actuation of the parking brake
control unless the parking brakes are capable, after such release, of
being reapplied at a level meeting the minimum performance specified
either in S5.6.1 or S5.6.2. This requirement shall be met both with and
without the engine on, and with and without single leakage-type
failure, in any other brake system, of a part designed to contain
compressed air or brake fluid (consistent with the parenthetical phrase
specified in S5.6.3.1).
S5.6.5.2 The initial conditions for S5.6.5.1 are as follows: The
reservoir system pressure is 100 psi. If the vehicle is designed to tow
a vehicle equipped with air brakes, a 50 cubic inch test reservoir is
connected to the supply line coupling.
S5.6.5.3 For trailers, with initial conditions as specified in
S5.6.5.4, at all times after actuation of the parking brakes by venting
the front supply line coupling to the atmosphere, and with any
subsequent level of pressure, or combination of levels of pressure, in
the reservoirs of any of the vehicle's brake systems, the parking
brakes shall not be releasable by repressurizing the supply line using
the supply line portion of the trailer test rig (Figure 1) to any
pressure above 70 psi, unless the parking brakes are capable, after
such release, of reapplication by subsequent venting of the front
supply line coupling to the atmosphere, at a level meeting the minimum
performance specified either in S5.6.1 or S5.6.2. This requirement
shall be met both with and without any single leakage-type failure, in
any other brake system, of a part designed to contain compressed air or
brake fluid (consistent with the parenthetical phrase specified in
S5.6.3.1).
[[Page 27296]]
S5.6.5.4 The initial conditions for S5.6.5.3 are as follows: The
reservoir system and supply line are pressurized to 100 psi, using the
supply line portion of the trailer test rig (Figure 1). If the vehicle
is designed to tow a vehicle equipped with air brakes, a 50 cubic inch
test reservoir is connected to the rear supply line coupling.
S5.6.6 Accumulation of actuation energy. Each parking brake system
shall meet the requirements specified in S5.6.6.1 through S5.6.6.6.
S5.6.6.1 For trucks and buses, with initial conditions as
specified in S5.6.6.2, the parking brake system shall be capable of
meeting the minimum performance specified either in S5.6.1 or S5.6.2,
with any single leakage-type failure, in any other brake system, of a
part designed to contain compressed air or brake fluid (consistent with
the parenthetical phrase specified in S5.6.3.1) at the conclusion of
the test sequence specified in S5.6.6.3.
S5.6.6.2 The initial conditions for S5.6.6.1 are as follows: The
engine is on. The reservoir system pressure is 100 psi. If the vehicle
is designed to tow a vehicle equipped with air brakes, a 50 cubic inch
test reservoir is connected to the supply line coupling.
S5.6.6.3 The test sequence for S5.6.6.1 is as follows: The engine
is turned off. Any single leakage type failure, in any other brake
system, of a part designed to contain compressed air or brake fluid
(consistent with the parenthetical phrase specified in S5.6.3.1), is
then introduced in the brake system. An application actuation of the
parking brake control is then made. Thirty seconds after such
actuation, a release actuation of the parking brake control is made.
Thirty seconds after the release actuation, a final application
actuation of the parking brake control is made.
S5.6.6.4 For trailers, with initial conditions as specified in
S5.6.6.5, the parking brake system shall be capable of meeting the
minimum performance specified either in S5.6.1 or S5.6.2, with any
single leakage-type failure, in any other brake system, of a part
designed to contain compressed air or brake fluid (consistent with the
parenthetical phrase specified in S5.6.3.1), at the conclusion of the
test sequence specified in S5.6.6.6.
S5.6.6.5 The initial conditions for S5.6.6.4 are as follows: The
reservoir system and supply line are pressurized to 100 psi, using the
supply line portion of the trailer test rig (Figure 1). If the vehicle
is designed to tow a vehicle equipped with air brakes, a 50 cubic inch
test reservoir is connected to the rear supply line coupling.
S5.6.6.6 The test sequence for S5.6.6.4 is as follows. Any single
leakage type failure, in any other brake system, of a part designed to
contain compressed air or brake fluid (consistent with the
parenthetical phrase specified in S5.6.3.1), is introduced in the brake
system. The front supply line coupling is vented to the atmosphere.
Thirty seconds after the initiation of such venting, the supply line is
repressurized with the trailer test rig (Figure 1). Thirty seconds
after the initiation of such repressurizing of the supply line, the
front supply line is vented to the atmosphere. This procedure is
conducted either by connection and disconnection of the supply line
coupling or by use of a valve installed in the supply line portion of
the trailer test rig near the supply line coupling.
S5.6.7 Maximum level of common diaphragm leakage-type failure/
Equivalent level of leakage from the air chamber containing that
diaphragm.
In the case of vehicles for which the option in S5.6(b) has been
elected, determine the maximum level of common diaphragm leakage-type
failure (or equivalent level of leakage from the air chamber containing
that diaphragm) according to the procedures set forth in S5.6.7.1
through S5.6.7.2.3.
S5.6.7.1 Trucks and buses.
S5.6.7.1.1 According to the following procedure, determine the
threshold level of common diaphragm leakage-type failure (or equivalent
level of leakage from the air chamber containing that diaphragm) at
which the vehicle's parking brakes become unreleasable. With an initial
reservoir system pressure of 100 psi, the engine turned off, no
application of any of the vehicle's brakes, and, if the vehicle is
designed to tow a vehicle equipped with air brakes, a 50 cubic inch
test reservoir connected to the supply line coupling, introduce a
leakage-type failure of the common diaphragm (or equivalent leakage
from the air chamber containing that diaphragm). Apply the parking
brakes by making an application actuation of the parking brake control.
Reduce the pressures in all of the vehicle's reservoirs to zero, turn
on the engine and allow it to idle, and allow the pressures in the
vehicle's reservoirs to rise until they stabilize or until the
compressor shut-off point is reached. At that time, make a release
actuation of the parking brake control, and determine whether all of
the mechanical means referred to in S5.6.3.2 continue to be actuated
and hold the parking brake applications with sufficient parking
retardation force to meet the minimum performance specified in either
S5.6.1 or S5.6.2. Repeat this procedure with progressively decreasing
or increasing levels (whichever is applicable) of leakage-type
diaphragm failures or equivalent leakages, to determine the minimum
level of common diaphragm leakage-type failure (or equivalent level of
leakage from the air chamber containing that diaphragm) at which all of
the mechanical means referred to in S5.6.3.2 continue to be actuated
and hold the parking brake applications with sufficient parking
retardation forces to meet the minimum performance specified in either
S5.6.1 or S5.6.2.
S5.6.7.1.2 At the level of common diaphragm leakage-type failure
(or equivalent level of leakage from the air chamber containing that
diaphragm) determined in S5.6.7.1.1, and using the following procedure,
determine the threshold maximum reservoir rate (in psi per minute).
With an initial reservoir system pressure of 100 psi, the engine turned
off, no application of any of the vehicle's brakes and, if the vehicle
is designed to tow a vehicle equipped with air brakes, a 50 cubic inch
test reservoir connected to the supply line coupling, make an
application actuation of the parking brake control. Determine the
maximum reservoir leakage rate (in psi per minute), which is the
maximum rate of decrease in air pressure of any of the vehicle's
reservoirs that results after that parking brake application.
S5.6.7.1.3 Using the following procedure, introduce a leakage-type
failure of the common diaphragm (or equivalent leakage from the air
chamber containing that diaphragm) that results in a maximum reservoir
leakage rate that is three times the threshold maximum reservoir
leakage rate determined in S5.6.7.1.2. With an initial reservoir system
pressure of 100 psi, the engine turned off, no application of any of
the vehicle's brakes and, if the vehicle is designed to tow a vehicle
equipped with air brakes, a 50 cubic inch test reservoir connected to
the supply line coupling, make an application actuation of the parking
brake control. Determine the maximum reservoir leakage rate (in psi per
minute), which is the maximum rate of decrease in air pressure of any
of the vehicle's reservoirs that results after that parking brake
application. The level of common diaphragm leakage-type failure (or
equivalent level of leakage from the air chamber containing that
diaphragm) associated with this reservoir leakage rate is the level
that is to be used under the option set forth in S5.6(b).
S5.6.7.2 Trailers.
S5.6.7.2.1 According to the following procedure, determine the
[[Page 27297]]
threshold level of common diaphragm leakage-type failure (or equivalent
level of leakage from the air chamber containing that diaphragm) at
which the vehicle's parking brakes become unreleasable. With an initial
reservoir system and supply line pressure of 100 psi, no application of
any of the vehicle's brakes, and, if the vehicle is designed to tow a
vehicle equipped with air brakes, a 50 cubic inch test reservoir
connected to the supply line coupling, introduce a leakage-type failure
of the common diaphragm (or equivalent leakage from the air chamber
containing that diaphragm). Make a parking brake application by venting
the front supply line coupling to the atmosphere, and reduce the
pressures in all of the vehicle's reservoirs to zero. Pressurize the
supply line by connecting the trailer's front supply line coupling to
the supply line portion of the trailer test rig (Figure 1) with the
regulator of the trailer test rig set at 100 psi, and determine whether
all of the mechanical means referred to in S5.6.3.2 continue to be
actuated and hold the parking brake applications with sufficient
parking retardation forces to meet the minimum performance specified in
either S5.6.1 or S5.6.2. Repeat this procedure with progressively
decreasing or increasing levels (whichever is applicable) of leakage-
type diaphragm failures or equivalent leakages, to determine the
minimum level of common diaphragm leakage-type failure (or equivalent
level of leakage from the air chamber containing that diaphragm) at
which all of the mechanical means referred to in S5.6.3.2 continue to
be actuated and hold the parking brake applications with sufficient
parking retardation forces to meet the minimum performance specified in
either S5.6.1 or S5.6.2.
S5.6.7.2.2 At the level of common diaphragm leakage-type failure
(or equivalent level of leakage from the air chamber containing that
diaphragm) determined in S5.6.7.2.1, and using the following procedure,
determine the threshold maximum reservoir leakage rate (in psi per
minute). With an initial reservoir system and supply line pressure of
100 psi, no application of any of the vehicle's brakes and, if the
vehicle is designed to tow a vehicle equipped with air brakes, a 50
cubic inch test reservoir connected to the rear supply line coupling,
make a parking brake application by venting the front supply line
coupling to the atmosphere. Determine the maximum reservoir leakage
rate (in psi per minute), which is the maximum rate of decrease in air
pressure of any of the vehicle's reservoirs that results after that
parking brake application.
S5.6.7.2.3 Using the following procedure, a leakage-type failure
of the common diaphragm (or equivalent leakage from the air chamber
containing that diaphragm) that results in a maximum reservoir leakage
rate that is three times the threshold maximum reservoir leakage rate
determined in S5.6.7.2.2. With an initial reservoir system and supply
line pressure of 100 psi, no application of any of the vehicle's brakes
and, if the vehicle is designed to tow a vehicle equipped with air
brakes, a 50 cubic inch test reservoir connected to the rear supply
line coupling, make a parking brake application by venting the front
supply line coupling to the atmosphere. Determine the maximum reservoir
leakage rate (in psi per minute), which is the maximum rate of decrease
in air pressure of any of the vehicle's reservoirs that results after
that parking brake application. The level of common diaphragm leakage-
type failure (or equivalent level of leakage from the air chamber
containing that diaphragm) associated with this reservoir leakage rate
is the level that is to be used under the option set forth in S5.6(b).
S5.7 Emergency brake system for trucks and buses. Each vehicle
shall be equipped with an emergency brake system which, under the
conditions of S6.1, conforms to the requirements of S5.7.1 through
S5.7.3. However, the truck portion of an auto transporter need not meet
the road test requirements of S5.7.1 and S5.7.3.
S5.7.1 Emergency brake system performance. When stopped six times
for each combination of weight and speed specified in S5.3.1.1, except
for a loaded truck tractor with an unbraked control trailer, on a road
surface having a PFC of 0.9, with a single failure in the service brake
system of a part designed to contain compressed air or brake fluid
(except failure of a common valve, manifold, brake fluid housing, or
brake chamber housing), the vehicle shall stop at least once in not
more than the distance specified in Column 5 of Table II, measured from
the point at which movement of the service brake control begins, except
that a truck-tractor tested at its unloaded vehicle weight plus up to
500 pounds shall stop at least once in not more than the distance
specified in Column 6 of Table II. The stop shall be made without any
part of the vehicle leaving the roadway, and with unlimited wheel
lockup permitted at any speed.
S5.7.2 Emergency brake system operation. The emergency brake
system shall be applied and released, and be capable of modulation, by
means of the service brake control.
S5.7.3 Towing vehicle emergency brake requirements. In addition to
meeting the other requirements of S5.7, a vehicle designed to tow
another vehicle equipped with air brakes shall--
(a) In the case of a truck-tractor in the unloaded condition and a
single unit truck which is capable of towing an airbrake equipped
vehicle and is loaded to GVWR, be capable of meeting the requirements
of S5.7.1 by operation of the service brake control only, with the
trailer air supply line and air control line from the towing vehicle
vented to the atmosphere in accordance with S6.1.14;
(b) In the case of a truck-tractor loaded to GVWR, be capable of
meeting S5.7.1 by operation of the service brake control only, with the
air control line from the towing vehicle vented to the atmosphere in
accordance with S6.1.14; and
(c) Be capable of modulating the air in the supply or control line
to the trailer by means of the service brake control with a single
failure in the towing vehicle service brake system as specified in
S5.7.1.
S5.8 Emergency brakes for trailers. Each trailer shall meet the
requirements of S5.8.1 through S5.8.3.
S5.8.1 Emergency braking capability. Each trailer other than a
trailer converter dolly shall have a parking brake system that conforms
to S5.6 and that applies with the force specified in S5.6.1 or S5.6.2
when the air pressure in the supply line is at atmospheric pressure. A
trailer converter dolly shall have, at the manufacturer's option--
(a) A parking brake system that conforms to S5.6 and that applies
with the force specified in S5.6.1 or S5.6.2 when the air pressure in
the supply line is at atmospheric pressure, or
(b) An emergency system that automatically applies the service
brakes when the service reservoir is at any pressure above 20 lb/in\2\
and the supply line is at atmospheric pressure. However, any
agricultural commodity trailer, heavy hauler trailer, or pulpwood
trailer shall meet the requirements of S5.8.1 or, at the option of the
manufacturer, the requirements of Sec. 393.43 of this title.
S5.8.2 Supply line pressure retention. Any single leakage type
failure in the service brake system (except for a failure of the supply
line, a valve directly connected to the supply line or a component of a
brake chamber housing) shall not result in the pressure in the supply
line falling below 70 psi, measured at the forward trailer supply
[[Page 27298]]
coupling. A trailer shall meet the above supply line pressure retention
requirement with its brake system connected to the trailer test rig
shown in Figure 1, with the reservoirs of the trailer and test rig
initially pressurized to 100 psi and the regulator of the trailer test
rig set at 100 psi; except that a trailer equipped with an air-applied,
mechanically-held parking brake system and not designed to tow a
vehicle equipped with air brakes, at the manufacturer's option, may
meet the requirements of S5.8.4 rather than those of S5.8.2 and S5.8.3.
S5.8.3 Automatic application of parking brakes. With an initial
reservoir system pressure of 100 psi and initial supply line pressure
of 100 psi, and if designed to tow a vehicle equipped with air brakes,
with a 50 cubic inch test reservoir connected to the rear supply line
coupling, and with any subsequent single leakage type failure in any
other brake system, of a part designed to contain compressed air or
brake fluid (consistent with the parenthetical phrase specified in
S5.6.3.1), whenever the air pressure in the supply line is 70 psi or
higher, the parking brakes shall not provide any brake retardation as a
result of complete or partial automatic application of the parking
brakes.
S5.8.4 Automatic application of air-applied, mechanically held
parking brakes. With its brake system connected to the supply line
portion of the trailer test rig (Figure 1) and the regulator of the
trailer test rig set at 100 psi, and with any single leakage type
failure in the service brake system (except for a failure of the supply
line, a valve directly connected to the supply line or a component of a
brake chamber, but including failure of any common diaphragm), the
parking brakes shall not provide any brake retardation as a result of
complete or partial automatic application of the parking brakes.
S5.9 Final inspection. Inspect the service brake system for the
condition of adjustment and for the brake indicator display in
accordance with S5.1.8 and S5.2.2.
S6. Conditions. The requirements of S5 shall be met by a vehicle
when it is tested according to the conditions set in this S6, without
replacing any brake system part or making any adjustments to the brake
system except as specified. Unless otherwise specified, where a range
of conditions is specified, the vehicle must be capable of meeting the
requirements at all points within the range. On vehicles equipped with
automatic brake adjusters, the automatic brake adjusters must remain
activated at all times. Compliance of vehicles manufactured in two or
more stages may, at the option of the final-stage manufacturer, be
demonstrated to comply with this standard by adherence to the
instructions of the incomplete vehicle manufacturer provided with the
vehicle in accordance with Sec. 568.4(a)(7)(ii) and Sec. 568.5 of title
49 of the Code of Federal Regulations.
S6.1 Road test conditions.
S6.1.1 Except as otherwise specified, the vehicle is loaded to its
GVWR, distributed proportionally to its GAWRs. During the burnish
procedure specified in S6.1.8, truck tractors shall be loaded to their
GVWR, by coupling them to an unbraked flatbed semitrailer, which
semitrailer shall be loaded so that the weight of the tractor-trailer
combination equals the GVWR of the truck tractor. The load on the
unbraked flatbed semitrailer shall be located so that the truck
tractor's wheels do not lock during burnish.
S6.1.2 The inflation pressure is as specified by the vehicle
manufacturer for the GVWR.
S6.1.3 Unless otherwise specified, the transmission selector
control is in neutral or the clutch is disengaged during all
decelerations and during static parking brake tests.
S6.1.4 All vehicle openings (doors, windows, hood, trunk, cargo
doors, etc.) are in a closed position except as required for
instrumentation purposes.
S6.1.5 The ambient temperature is between 32 deg. F. and 100 deg.
F.
S6.1.6 The wind velocity is zero.
S6.1.7 Unless otherwise specified, stopping tests are conducted on
a 12-foot wide level, straight roadway having a peak friction
coefficient of 0.9. For road tests in S5.3, the vehicle is aligned in
the center of the roadway at the beginning of a stop. Peak friction
coefficient is measured using an ASTM E1136 standard reference test
tire in accordance with ASTM method E1337-90, at a speed of 40 mph,
without water delivery for the surface with PFC of 0.9, and with water
delivery for the surface with PFC of 0.5.
S6.1.8 For vehicles with parking brake systems not utilizing the
service brake friction elements, burnish the friction elements of such
systems prior to the parking brake test according to the manufacturer's
recommendations. For vehicles with parking brake systems utilizing the
service brake friction elements, burnish the brakes as follows: With
the transmission in the highest gear appropriate for a speed of 40 mph,
make 500 snubs between 40 mph and 20 mph at a deceleration rate of 10
f.p.s.p.s., or at the vehicle's maximum deceleration rate if less than
10 f.p.s.p.s. Except where an adjustment is specified, after each brake
application accelerate to 40 mph and maintain that speed until making
the next brake application at a point 1 mile from the initial point of
the previous brake application. If the vehicle cannot attain a speed of
40 mph in 1 mph, continue to accelerate until the vehicle reaches 40
mph or until the vehicle has traveled 1.5 miles from the initial point
of the previous brake application, whichever occurs first. Any
automatic pressure limiting valve is in use to limit pressure as
designed. The brakes may be adjusted up to three times during the
burnish procedure, at intervals specified by the vehicle manufacturer,
and may be adjusted at the conclusion of the burnishing, in accordance
with the vehicle manufacturer's recommendation.
S6.1.9 Static parking brake tests for a semitrailer are conducted
with the front-end supported by an unbraked dolly. The weight of the
dolly is included as part of the trailer load.
S6.1.10 In a test other than a static parking test, a truck
tractor is tested at its GVWR by coupling it to an unbraked flatbed
semi-trailer (hereafter, control trailer) as specified in S6.1.10.2 to
S6.1.10.4.
S6.1.10.1 [Reserved]
S6.1.10.2 The center of gravity height of the ballast on the
loaded control trailer shall be less than 24 inches above the top of
the tractor's fifth wheel.
S6.1.10.3 The control trailer has a single axle with a GAWR of
18,000 pounds and a length, measured from the transverse centerline of
the axle to the centerline of the kingpin, of 258 plus-minus 6
inches.
S6.1.10.4 The control trailer is loaded so that its axle is loaded
at 4,500 pounds and the tractor is loaded to its GVWR, loaded above the
kingpin only, with the tractor's fifth wheel adjusted so that the load
on each axle measured at the tire-ground interface is most nearly
proportional to the axles' respective GAWRs, without exceeding the GAWR
of the tractor's axle or axles or control trailer's axle.
S6.1.11 Special drive conditions. A vehicle equipped with an
interlocking axle system or a front wheel drive system that is engaged
and disengaged by the driver is tested with the system disengaged.
S6.1.12 Liftable axles. A vehicle with a liftable axle is tested
at GVWR with the liftable axle down and at unloaded vehicle weight with
the liftable axle up.
S6.1.13 Trailer test rig.
(a) The trailer test rig shown in Figure 1 is calibrated in
accordance with the calibration curves shown in Figure 3.
[[Page 27299]]
For the requirements of S5.3.3.1 and S5.3.4.1, the pressure in the
trailer test rig reservoir is initially set at 100 psi for actuation
tests and 95 psi for release tests.
(b) The trailer test rig shown in Figure 1(a) is capable of
increasing the pressure in a 50 cubic inch reservoir from atmospheric
to 60 lb/in\2\ in 0.06 second, measured from the first movement of the
service brake control to apply service brake pressure and of releasing
pressure in such a reservoir from 95 to 5 lb/in\2\ in 0.22 second
measured from the first movement of the service brake control to
release service brake pressure.
S6.1.14 In testing the emergency braking system of towing vehicles
under S5.7.3(a) and S5.7.3(b), the hose(s) is vented to the atmosphere
at any time not less than 1 second and not more than 1 minute before
the emergency stop begins, while the vehicle is moving at the speed
from which the stop is to be made and any manual control for the towing
vehicle protection system is in the position to supply air and brake
control signals to the vehicle being towed. No brake application is
made from the time the line(s) is vented until the emergency stop
begins and no manual operation of the parking brake system or towing
vehicle protection system occurs from the time the line(s) is vented
until the stop is completed.
S6.1.15 Initial brake temperature. Unless otherwise specified, the
initial brake temperature is not less than 150 deg. F and not more than
200 deg. F.
6.2 Dynamometer test conditions.
S6.2.1 The dynamometer inertia for each wheel is equivalent to the
load on the wheel with the axle loaded to its GAWR. For a vehicle
having additional GAWRs specified for operation at reduced speeds, the
GAWR used is that specified for a speed of 50 mph, or, at the option of
the manufacturer, any speed greater than 50 mph.
S6.2.2 The ambient temperature is between 75 deg. F. and 100 deg.
F.
S6.2.3 Air at ambient temperature is directed uniformly and
continuously over the brake drum or disc at a velocity of 2,200 feet
per minute.
S6.2.4 The temperature of each brake is measured by a single plug-
type thermocouple installed in the center of the lining surface of the
most heavily loaded shoe or pad as shown in Figure 2. The thermocouple
is outside any center groove.
S6.2.5 The rate of brake drum or disc rotation on a dynamometer or
responding to the rate of rotation on a vehicle at a given speed is
calculated by assuming a tire radius equal to the static loaded radius
specified by the tire manufacturer.
S6.2.6 Brakes are burnished before testing as follows: place the
brake assembly on an inertia dynamometer and adjust the brake as
recommended by the vehicle manufacturer. Make 200 stops from 40 mph at
a deceleration of 10 f.p.s.p.s., with an initial brake temperature on
each stop of not less than 315 deg. F and not more than 385 deg. F.
Make 200 additional stops from 40 mph at a deceleration of 10
f.p.s.p.s. with an initial brake temperature on each stop of not less
than 450 deg. F and not more than 550 deg. F. The brakes may be
adjusted up to three times during the burnish procedure, at intervals
specified by the vehicle manufacturer, and may be adjusted at the
conclusion of the burnishing, in accordance with the vehicle
manufacturer's recommendation.
S6.2.7 The brake temperature is increased to a specified level by
conducting one or more stops from 40 m.p.h. at a deceleration of 10
f.p.s.p.s. The brake temperature is decreased to a specified level by
rotating the drum or disc at a constant 30 m.p.h.
BILLING CODE 4910-59-P
[[Page 27300]]
[GRAPHIC] [TIFF OMITTED] TR31MY96.113
[[Page 27301]]
[GRAPHIC] [TIFF OMITTED] TR31MY96.114
[[Page 27302]]
[GRAPHIC] [TIFF OMITTED] TR31MY96.115
[[Page 27303]]
[GRAPHIC] [TIFF OMITTED] TR31MY96.116
BILLING CODE 4910-59-C
[[Page 27304]]
Table I.--Stopping Sequence
1. Burnish.
2. Stops on a peak friction coefficient surface of 0.5:
(a) With the vehicle at gross vehicle weight rating (GVWR), stop
the vehicle from 30 mph using the service brake, for a truck tractor
with a loaded unbraked control trailer.
(b) With the vehicle at unloaded weight plus up to 500 lbs., stop
the vehicle from 30 mph using the service brake, for a truck tractor.
3. Manual adjustment of the service brakes allowed for truck tractors,
within the limits recommended by the vehicle manufacturer.
4. Other stops with vehicle at GVWR:
(a) 60 mph service brake stops on a peak friction coefficient
surface of 0.9, for a truck tractor with a loaded unbraked control
trailer, or for a single-unit vehicle.
(b) 60 mph emergency brake stops on a peak friction coefficient of
0.9, for a single-unit vehicle. Truck tractors are not required to be
tested in the loaded condition.
5. Parking brake test with the vehicle loaded to GVWR.
6. Manual adjustment of the service brakes allowed for truck tractors
and single-unit vehicles, within the limits recommended by the vehicle
manufacturer.
7. Other stops with the vehicle at unloaded weight plus up to 500 lbs.:
(a) 60 mph service brake stops on a peak friction coefficient
surface of 0.9, for a truck tractor or for a single-unit vehicle.
(b) 60 mph emergency brake stops on a peak friction coefficient of
0.9, for a truck tractor or for a single-unit vehicle.
8. Parking brake test with the vehicle at unloaded weight plus up to
500 lbs.
9. Final inspection of service brake system for condition of
adjustment.
Table II.--Stopping Distance in Feet
----------------------------------------------------------------------------------------------------------------
Service brake Emergency brake
-----------------------------------------------------
Vehicle speed in miles per hour PFC PFC PFC PFC PFC PFC
0.9 0.9 0.9 0.9 0.9 0.9
----------------------------------------------------------------------------------------------------------------
(1) (2) (3) (4) (5) (6)
-----------------------------------------------------
20........................................................ 32 35 38 40 83 85
25........................................................ 49 54 59 62 123 131
30........................................................ 70 78 84 89 170 186
35........................................................ 96 106 114 121 225 250
40........................................................ 125 138 149 158 288 325
45........................................................ 158 175 189 200 358 409
50........................................................ 195 216 233 247 435 504
55........................................................ 236 261 281 299 520 608
60........................................................ 280 310 335 355 613 720
----------------------------------------------------------------------------------------------------------------
Note: (1) Loaded and unloaded buses; (2) Loaded single unit trucks; (3) Unloaded truck tractors and single unit
trucks; (4) Loaded truck tractors tested with an unbraked control trailer; (5) All vehicles except truck
tractors; (6) Unloaded truck tractors.
Table III.--Brake Retardation Force
------------------------------------------------------------------------
Column 2
Brake
Column 1 Brake Retardation Force, GAWR Chamber
Pressure,
PSI
------------------------------------------------------------------------
0.05....................................................... 20
0.12....................................................... 30
0.18....................................................... 40
0.25....................................................... 50
0.31....................................................... 60
0.37....................................................... 70
0.41....................................................... 80
------------------------------------------------------------------------
Table IV.--[Reserved]
Table V.--Brake Chamber Rated Volumes
------------------------------------------------------------------------
Column 2
Column 1 Rated
Brake chamber type (Nominal area of piston or Full volume
diaphragm in square inches) stroke (Cubic
(Inches) Inches)
------------------------------------------------------------------------
Type 9............................................ 1.75/2.10 25
Type 12........................................... 1.75/2.10 30
Type 14........................................... 2.25/2.70 40
Type 16........................................... 2.25/2.70 50
Type 18........................................... 2.25/2.70 55
Type 20........................................... 2.25/2.70 60
Type 24........................................... 2.25/2.70 70
Type 30........................................... 2.50/3.20 95
Type 36........................................... 3.00/3.60 135
------------------------------------------------------------------------
Issued on: May 23, 1996.
Barry Felrice,
Associate Administrator for Safety Performance Standards.
[FR Doc. 96-13557 Filed 5-30-96; 8:45 am]
BILLING CODE 4910-59-P
Complete official Federal Register PDF
FR Doc. 96-13496 Airworthiness Directives; Saab Model SAAB 2000 Series Airplanes
[Federal Register Volume 61, Number 106 (Friday, May 31, 1996)]
[Rules and Regulations]
[Pages 27253-27255]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13496]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 96-NM-102-AD; Amendment 39-9639; AD 96-11-14]
RIN 2120-AA64
Airworthiness Directives; Saab Model SAAB 2000 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD) that
is applicable to certain Saab Model SAAB 2000 series airplanes. This
action requires inspections to detect cracking of the lower rib of the
rudder, and repair, if necessary. This action also provides for an
optional terminating action, which, if accomplished, terminates the
repetitive inspection requirement. This amendment is prompted by
reports of fatigue cracking of the lower rib of the rudder. The actions
specified in this AD are intended to prevent such fatigue cracking and
subsequent failure of the primary structure of the rudder, which could
result in reduced controllability of the airplane.
DATES: Effective June 17, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of June 17, 1996.
Comments for inclusion in the Rules Docket must be received on or
before July 30, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Transport Airplane Directorate, ANM-103,
Attention: Rules Docket No. 96-NM-102-AD, 1601 Lind Avenue, SW.,
Renton, Washington 98055-4056.
The service information referenced in this AD may be obtained from
SAAB
[[Page 27254]]
Aircraft AB, SAAB Aircraft Product Support, S-581.88, Linkoping,
Sweden. This information may be examined at the FAA, Transport Airplane
Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the
Office of the Federal Register, 800 North Capitol Street, NW., suite
700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Ruth E. Harder, Aerospace Engineer,
Standardization Branch, ANM-113, FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (206)
227-1721; fax (206) 227-1149.
SUPPLEMENTARY INFORMATION: The Luftfartsverket (LFV), which is the
airworthiness authority for Sweden, recently notified the FAA that an
unsafe condition may exist on certain Saab Model 2000 series airplanes.
The LFV advises that it has received reports indicating that cracking
of the bottom rib of the elevator has been detected on two Model SAAB
2000 series airplanes. Investigation revealed that, loose pieces of the
web were found inside the rudder on one airplane. The cause of the
cracking has been attributed to fatigue. Fatigue cracking and
subsequent failure of the rudder, if not detected and corrected in a
timely manner, could result in reduced controllability of the airplane.
Explanation of Relevant Service Information
Saab has issued Service Bulletin SAAB 2000-55-005, dated February
2, 1996, which describes procedures for repetitive visual inspections
to detect cracking of the lower rib of the rudder. The service bulletin
also describes procedures for a temporary repair of cracking that is
within certain specified limits. The LFV classified this service
bulletin as mandatory and issued Swedish airworthiness directive SAD
No. 1-088-R1 in order to assure the continued airworthiness of these
airplanes in Sweden.
Additionally, Saab has issued Service Bulletin 2000-55-006, dated
April 23, 1996, which describes procedures to modify the elevator by
reinforcing the lower rib. This modification (Modification No. 5736)
will prevent failure of the rudder due to fatigue cracking of the lower
rib. Accomplishment of the modification eliminates the need for the
repetitive visual inspections. The LFV has approved the technical
content of this service bulletin.
FAA's Conclusions
This airplane model is manufactured in Sweden and is type
certificated for operation in the United States under the provisions of
section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and
the applicable bilateral airworthiness agreement. Pursuant to this
bilateral airworthiness agreement, the LFV has kept the FAA informed of
the situation described above. The FAA has examined the findings of the
LFV, reviewed all available information, and determined that AD action
is necessary for products of this type design that are certificated for
operation in the United States.
Explanation of Requirements of Rule
Since an unsafe condition has been identified that is likely to
exist or develop on other airplanes of the same type design registered
in the United States, this AD is being issued to prevent fatigue
cracking of the lower rib of the rudder and subsequent failure of the
primary structure of the rudder. Such failure could result in reduced
controllability of the airplane. This AD requires repetitive visual
inspections to detect cracking of the lower rib of the rudder, and
repair, if necessary. The inspections and certain repairs are required
to be accomplished in accordance with Saab Service Bulletin 2000-55-
005, described previously. Repair of any cracking detected that is
beyond the limits specified in that service bulletin is required to be
accomplished in accordance with a method approved by the FAA.
This AD also provides for optional modification of the rudder,
which, if accomplished, constitutes terminating action for the
repetitive inspection requirements of this AD. If accomplished, the
modification is required to be accomplished in accordance with SAAB
Service Bulletin 2000-55-006.
This is considered to be interim action. The FAA is currently
considering requiring the installation of the rudder modification that
will constitute terminating action for the repetitive inspections
required by this AD. However, the planned compliance time for the
installation of the modification is sufficiently long so that notice
and public comment will be practicable.
Determination of Rule's Effective Date
Since a situation exists that requires the immediate adoption of
this regulation, it is found that notice and opportunity for prior
public comment hereon are impracticable, and that good cause exists for
making this amendment effective in less than 30 days.
Comments Invited
Although this action is in the form of a final rule that involves
requirements affecting flight safety and, thus, was not preceded by
notice and an opportunity for public comment, comments are invited on
this rule. Interested persons are invited to comment on this rule by
submitting such written data, views, or arguments as they may desire.
Communications shall identify the Rules Docket number and be submitted
in triplicate to the address specified under the caption ADDRESSES. All
communications received on or before the closing date for comments will
be considered, and this rule may be amended in light of the comments
received. Factual information that supports the commenter's ideas and
suggestions is extremely helpful in evaluating the effectiveness of the
AD action and determining whether additional rulemaking action would be
needed.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the rule that might
suggest a need to modify the rule. All comments submitted will be
available, both before and after the closing date for comments, in the
Rules Docket for examination by interested persons. A report that
summarizes each FAA-public contact concerned with the substance of this
AD will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this rule must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 96-NM-102-AD.'' The postcard will be date stamped and
returned to the commenter.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment. -
The FAA has determined that this regulation is an emergency
regulation that must be issued immediately to correct an unsafe
condition in aircraft, and that it is not a ``significant regulatory
action'' under Executive Order 12866. It has been determined further
that this action involves an
[[Page 27255]]
emergency regulation under DOT Regulatory Policies and Procedures (44
FR 11034, February 26, 1979). If it is determined that this emergency
regulation otherwise would be significant under DOT Regulatory Policies
and Procedures, a final regulatory evaluation will be prepared and
placed in the Rules Docket. A copy of it, if filed, may be obtained
from the Rules Docket at the location provided under the caption
ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES -
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended] -
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-11-14 SAAB Aircraft Ab: Amendment 39-9639. Docket 96-NM-102-AD.
-Applicability: Model SAAB 2000 series airplanes; having serial
numbers 004 through 039, inclusive; certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
otherwise modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (f) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously. -
To prevent fatigue cracking of the lower rib of the rudder and
subsequent reduced controllability of the airplane, accomplish the
following:
(a) Within 20 days after the effective date of this AD: Perform
a visual inspection to detect cracking of the lower rib of the
rudder, in accordance with Saab Service Bulletin 2000-55-005, dated
February 2, 1996.
(b) If no cracking is detected: Thereafter, repeat the
inspection required by paragraph (a) of this AD at intervals not to
exceed 400 hours time-in-service, in accordance with Saab Service
Bulletin 2000-55-005, dated February 2, 1996.
(c) If any cracking is detected that is 25 mm in length or less:
Prior to further flight, perform a temporary repair in accordance
with paragraph 2.C. of the Accomplishment Instructions of Saab
Service Bulletin 2000-55-005, dated February 2, 1996. Thereafter,
repeat the inspections required by paragraph (a) of this AD at
intervals not to exceed 7 days. -
(d) If any cracking is detected that is more than 25 mm in
length: Prior to further flight, repair it in accordance with a
method approved by the Manager, Standardization Branch, ANM-113,
FAA, Transport Airplane Directorate. -
(e) Modification of the lower rib of the rudder (Modification
No. 5736), in accordance with Saab Service Bulletin 2000-55-006,
dated April 23, 1996, constitutes terminating action for the
repetitive inspection requirements of this AD.
(f) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Standardization Branch, ANM-113.
Operators shall submit their requests through an appropriate FAA
Principal Maintenance Inspector, who may add comments and then send
it to the Manager, Standardization Branch, ANM-113.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Standardization Branch, ANM-113.
(g) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(h) The inspections and temporary repair shall be done in
accordance with Saab Service Bulletin 2000-55-005, dated February 2,
1996. This incorporation by reference was approved by the Director
of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR
part 51. Copies may be obtained from SAAB Aircraft AB, SAAB Aircraft
Product Support, S-581.88, Linkoping, Sweden. Copies may be
inspected at the FAA, Transport Airplane Directorate, 1601 Lind
Avenue, SW., Renton, Washington; or at the Office of the Federal
Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
(i) This amendment becomes effective on June 17, 1996.
Issued in Renton, Washington, on May 22, 1996.
John J. Hickey,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-13496 Filed 5-30-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-13495 Airworthiness Directives; McDonnell Douglas Model DC-9-80 Series Airplanes and Model MD-88 Airplanes
[Federal Register Volume 61, Number 106 (Friday, May 31, 1996)]
[Rules and Regulations]
[Pages 27251-27253]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13495]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 96-NM-98-AD; Amendment 39-9638; AD 96-11-13]
RIN 2120-AA64
Airworthiness Directives; McDonnell Douglas Model DC-9-80 Series
Airplanes and Model MD-88 Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This amendment adopts a new airworthiness directive (AD) that
is applicable to certain McDonnell Douglas Model DC-9-80 series
airplanes and Model MD-88 airplanes. This action requires a visual
inspection to determine the type of fluorescent light ballasts
installed in the cabin sidewall; and installation of a protective
cover, replacement, or removal/disconnection, if necessary. This action
also requires removal of the dust barriers from the outboard ceiling
panels, and installation of modified outboard ceiling panels. This
amendment is prompted by reports of smoke, fumes, and/or electrical
fire emitting from the baggage bin of the aft passenger compartment and
from the dust barriers of the outboard ceiling due to the failure of
the fluorescent light ballasts. The actions specified in this AD are
intended to prevent a fire in the passenger compartment, which could
result from failure of the fluorescent light ballast of the upper and
lower cabin sidewall, and subsequent failure of the dust barriers of
the outboard ceiling panel.
DATES: Effective June 17, 1996.
The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of June 17, 1996.
Comments for inclusion in the Rules Docket must be received on or
before July 30, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Transport Airplane Directorate, ANM-103,
Attention: Rules Docket No. 96-NM-98-AD, 1601 Lind Avenue, SW., Renton,
Washington 98055-4056.
The service information referenced in this AD may be obtained from
McDonnell Douglas Corporation, 3855 Lakewood Boulevard, Long Beach,
California 90846, Attention: Technical Publications Business
Administration, Department C1-L51 (2-60). This information may be
examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue,
SW., Renton, Washington; or at the FAA, Los Angeles Aircraft
Certification Office, Transport Airplane Directorate, 3960 Paramount
Boulevard, Lakewood, California; or at the Office of the Federal
Register, 800 North Capitol Street, NW., suite 700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: J. Kirk Baker, Aerospace Engineer,
Systems and Equipment Branch, ANM-130L, FAA, Los Angeles Aircraft
Certification Office, 3960 Paramount Boulevard, Lakewood, California
90712; telephone (310) 627-5345; fax (310) 627-5210.
SUPPLEMENTARY INFORMATION: The FAA has received two reports of smoke,
fumes, and/or electrical fire emitting from the baggage bin of the aft
passenger compartment and from the dust barriers of the outboard
ceiling panel on McDonnell Douglas Model DC-9-82 (MD-82) series
airplanes. Investigation revealed that the existing design of the
[[Page 27252]]
light ballast assembly allows moisture condensation to ingress into the
ballast case during altitude changes. The effects of such moisture
subsequently contaminate the printed circuit card, which could result
in a short circuit that ruptures the ballast casing and emits fire. In
addition, investigation revealed that the failed light ballast assembly
generated enough heat to ignite the dust barriers of the outboard
ceiling panel; these barriers are flammable and have the potential to
spread a fire to adjacent interior components. These conditions, if not
corrected, could result in a fire in the passenger compartment.
Explanation of Relevant Service Information
The FAA has reviewed and approved McDonnell Douglas Alert Service
Bulletin MD80-33A107, dated April 25, 1996, which describes the
following procedures:
1. Performing a one-time visual inspection to determine the type of
fluorescent light ballasts installed in the upper and lower cabin
sidewall; and
2. Installing a protective cover on any Day-Ray Products
Incorporated ballast, or replacing any Day-Ray Products Incorporated
ballast with a Bruce Industries Incorporated ballast. Accomplishment of
these actions will minimize the possibility of failure of the ballasts
due to uncontained smoke and flame.
The FAA has also reviewed and approved McDonnell Douglas Alert
Service Bulletin MD80-25A353, dated March 14, 1996, which describes
procedures for removal of the dust barriers from the outboard ceiling
panels, and installation of modified outboard ceiling panels.
Accomplishment of this removal and installation will minimize the
possibility of smoke or fire spreading into the cabin.
Explanation of the Requirements of the Rule
Since an unsafe condition has been identified that is likely to
exist or develop on other McDonnell Douglas Model DC-9-80 series
airplanes and Model MD-88 airplanes of the same type design, this AD is
being issued to prevent a fire in the passenger compartment, which
could result from the failure of the fluorescent light ballast of the
upper and lower cabin sidewall, and the subsequent failure of the dust
barriers of the outboard ceiling panel. This AD requires a one-time
visual inspection to determine the type of fluorescent light ballasts
installed in the upper and lower cabin sidewall. For airplanes on which
any Day-Ray Products Incorporated ballast is installed, this AD also
requires accomplishment of one of the following actions:
--Installation of a protective cover on the ballast; or
--Replacement of that ballast with a Bruce Industries Incorporated
ballast.
Additionally, for some airplanes, this AD requires removal of the dust
barriers from the outboard ceiling panels, and installation of modified
outboard ceiling panels. The actions are required to be accomplished in
accordance with the alert service bulletins described previously.
Operators should note that, in addition to the recommendations of
McDonnell Douglas Alert Service Bulletin MD80-33A107, this AD provides
an additional option for airplanes on which any Day-Ray Products
Incorporated ballast is installed that involves removal or electrical
disconnection of the ballast, stowage of the ballast, and protection of
the loose wiring. The FAA finds that accomplishment of these actions
will eliminate the identified unsafe condition for those airplanes.
In addition, the FAA is aware that parts availability may become a
problem in the future. However, under the provisions of paragraph (d)
of the final rule, the FAA may approve requests for adjustments to the
compliance time if data are submitted to substantiate that such an
adjustment would provide an acceptable level of safety.
Determination of Rule's Effective Date
Since a situation exists that requires the immediate adoption of
this regulation, it is found that notice and opportunity for prior
public comment hereon are impracticable, and that good cause exists for
making this amendment effective in less than 30 days.
Comments Invited
Although this action is in the form of a final rule that involves
requirements affecting flight safety and, thus, was not preceded by
notice and an opportunity for public comment, comments are invited on
this rule. Interested persons are invited to comment on this rule by
submitting such written data, views, or arguments as they may desire.
Communications shall identify the Rules Docket number and be submitted
in triplicate to the address specified under the caption ADDRESSES. All
communications received on or before the closing date for comments will
be considered, and this rule may be amended in light of the comments
received. Factual information that supports the commenter's ideas and
suggestions is extremely helpful in evaluating the effectiveness of the
AD action and determining whether additional rulemaking action would be
needed.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the rule that might
suggest a need to modify the rule. All comments submitted will be
available, both before and after the closing date for comments, in the
Rules Docket for examination by interested persons. A report that
summarizes each FAA-public contact concerned with the substance of this
AD will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this rule must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 96-NM-98-AD.'' The postcard will be date stamped and
returned to the commenter.
Regulatory Impact
The regulations adopted herein will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
The FAA has determined that this regulation is an emergency
regulation that must be issued immediately to correct an unsafe
condition in aircraft, and that it is not a ``significant regulatory
action'' under Executive Order 12866. It has been determined further
that this action involves an emergency regulation under DOT Regulatory
Policies and Procedures (44 FR 11034, February 26, 1979). If it is
determined that this emergency regulation otherwise would be
significant under DOT Regulatory Policies and Procedures, a final
regulatory evaluation will be prepared and placed in the Rules Docket.
A copy of it, if filed, may be obtained from the Rules Docket at the
location provided under the caption ADDRESSES.
[[Page 27253]]
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding the following new
airworthiness directive:
96-11-13 McDonnell Douglas: Amendment 39-9638. Docket 96-NM-98-AD.
Applicability: Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83
(MD-83), and DC-9-87 (MD-87) and Model MD-88 airplanes; as listed in
McDonnell Douglas Alert Service Bulletin MD80-33A107, dated April
25, 1996; and McDonnell Douglas Alert Service Bulletin MD80-25A353,
dated March 14, 1996; certificated in any category.
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
otherwise modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (d) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated, unless accomplished
previously.
To prevent failure of the fluorescent light ballast of the upper
and lower cabin sidewall, and subsequent failure of the dust
barriers of the outboard ceiling panel, which could result in a fire
in the passenger compartment, accomplish the following:
(a) For all airplanes: Within 90 days after the effective date
of this AD, perform a one-time visual inspection to determine the
type of fluorescent light ballasts installed in the upper and lower
cabin sidewall, in accordance with McDonnell Douglas Alert Service
Bulletin MD80-33A107, dated April 25, 1996.
(1) If any Bruce Industries Incorporated ballast is installed
(specified as Condition 1 in the alert service bulletin), no further
action is required by this paragraph for that ballast.
(2) If any Day-Ray Products Incorporated ballast is installed
(specified as Condition 2 in the alert service bulletin), prior to
further flight, accomplish either paragraph (a)(2)(i), (a)(2)(ii),
or (a)(2)(iii) of this AD.
(i) Install a protective cover on the ballast in accordance with
Condition 2, Option 1, of the alert service bulletin. Or
(ii) Replace it with a Bruce Industries Incorporated ballast, in
accordance with Condition 2, Option 2, of the alert service
bulletin. Or
(iii) Remove or disconnect it electrically, stow it, and protect
the loose wiring.
(b) For airplanes having manufacturer's fuselage numbers listed
in McDonnell Douglas Alert Service Bulletin MD80-25A353, dated March
14, 1996: Within 90 days after the effective date of this AD, remove
the dust barriers from the outboard ceiling panels, and install
modified outboard ceiling panels, in accordance with McDonnell
Douglas Alert Service Bulletin MD80-25A353, dated March 14, 1996.
(c) As of the effective date of this AD, no Day-Ray Products
Incorporated ballast, having any part number identified in paragraph
1.2. of McDonnell Douglas Alert Service Bulletin MD80-33A107, dated
April 25, 1996, shall be installed on any airplane unless that
ballast has been modified in accordance with that alert service
bulletin.
(d) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Los Angeles Aircraft Certification
Office (ACO), FAA, Transport Airplane Directorate. Operators shall
submit their requests through an appropriate FAA Principal
Maintenance Inspector, who may add comments and then send it to the
Manager, Los Angeles ACO.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Los Angeles ACO.
(e) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(f) The inspection and replacement shall be done in accordance
with McDonnell Douglas Alert Service Bulletin MD80-33A107, dated
April 25, 1996. The removal of the dust barriers and installations
shall be done in accordance with McDonnell Douglas Alert Service
Bulletin MD80-25A353, dated March 14, 1996. This incorporation by
reference was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be
obtained from McDonnell Douglas Corporation, 3855 Lakewood
Boulevard, Long Beach, California 90846, Attention: Technical
Publications Business Administration, Department C1-L51 (2-60).
Copies may be inspected at the FAA, Transport Airplane Directorate,
1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Los
Angeles Aircraft Certification Office, Transport Airplane
Directorate, 3960 Paramount Boulevard, Lakewood, California; or at
the Office of the Federal Register, 800 North Capitol Street, NW.,
suite 700, Washington, DC.
(g) This amendment becomes effective on June 17, 1996.
Issued in Renton, Washington, on May 22, 1996.
James V. Devany,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service. -
[FR Doc. 96-13495 Filed 5-30-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-13478 Gender Policy for VA Publications and Other Communications
[Federal Register Volume 61, Number 106 (Friday, May 31, 1996)]
[Rules and Regulations]
[Page 27282]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13478]
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 1
RIN 2900-AI09
Gender Policy for VA Publications and Other Communications
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document amends regulations of the Department of Veterans
Affairs (VA) by removing Sec. 1.13 of 38 CFR. This section provided
that VA publications and other communications must avoid using language
refering only to the masculine gender when the feminine gender also was
intended to be included. This guidance was intended to avoid any
incorrect appearance of seeming to preclude benefits for female
veterans, dependents, or beneficiaries. Although, VA is fully committed
to the gender-neutral concepts that were set forth in Sec. 1.13, the
material from Sec. 1.13 is removed since the mandate from that section
is being accomplished through internal issuances.
EFFECTIVE DATE: May 31, 1996.
FOR FURTHER INFORMATION CONTACT: Kenneth Hoffman, Director, Information
Resources Management, Policy and Standards Service (045A3), Department
of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420,
(202) 273-8129.
SUPPLEMENTARY INFORMATION: This final rule consists of nonsubstantive
changes and, therefore, is not subject to the notice and comment and
effective date provisions of 5 U.S.C. 553.
The Secretary hereby certifies that this final rule will not have a
significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act (RFA), 5. U.S.C.
601-602. This final rule would not cause a significant effect on any
entities since it does not contain any substantive provisions.
Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from
the initial and final regulatory flexibility analysis requirements of
sections 603 and 604.
There are no Catalog of Federal Domestic Assistance program numbers
for this regulation.
List of Subjects in 38 CFR Part 1
Administrative practice and procedure, Claims, Freedom of
information, Government contracts, Government employees, Government
property, Reporting and recordkeeping requirements.
Approved: May 13, 1996.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 38 CFR part 1 is amended
as set forth below:
PART 1--GENERAL PROVISIONS
1. The authority citation for part 1 continues to read as follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
Sec. 1.131 [Removed]
2. The undesignated centerheading preceding Sec. 1.13 and Sec. 1.13
are removed.
[FR Doc. 96-13478 Filed 5-30-96; 8:45 am]
BILLING CODE 8320-01-P
Complete official Federal Register PDF
FR Doc. 96-13477 National Cemeteries
[Federal Register Volume 61, Number 106 (Friday, May 31, 1996)]
[Rules and Regulations]
[Pages 27281-27282]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13477]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 1
RIN 2900-AI06
National Cemeteries
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document amends Department of Veterans Affairs (VA)
national cemeteries regulations by eliminating provisions that simply
restate statutory provisions of 38 U.S.C. 2306, 2400, 2401, 2402, 2407,
and Chapter 83; by eliminating provisions that duplicate other
regulations in 38 CFR 1.218-1.220, and by eliminating internal
instructions not required to be published in the Federal Register.
EFFECTIVE DATE: May 31, 1996.
FOR FURTHER INFORMATION CONTACT: Mr. Ken Greenberg, Program Analyst,
National Cemetery System, Executive Communications (402B1), Department
of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420,
(202) 273-5179 (this is not a toll-free number).
SUPPLEMENTARY INFORMATION: This final rule consists of nonsubstantive
changes and, therefore, is not subject to the notice and comment and
effective date provisions of 5 U.S.C. 553.
The Secretary hereby certifies that this final rule will not have a
significant economic impact on a substantial number of small entitles
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. This final rule merely consists of nonsubstantive changes.
Catalog of Federal Domestic Assistance Numbers for programs
affected by this regulation are 64.201, 64.202 and 64.203.
List of Subjects in 38 CFR Part 1
Administrative practice and procedures, Cemeteries, Claims,
Privacy, Security.
Approved: May 17, 1996.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set forth in the preamble, 38 CFR part 1 is amended
to read as follows:
PART 1--GENERAL PROVISIONS
1. The authority citation for part 1 continues to read as follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
2. The authority citation immediately preceding Secs. 1.600 to
1.633 is revised to read as follows:
Authority: Sections 1.601 to 1.633 issued under 38 U.S.C. 501,
2306, chapter 24.
Sec. Sec. 1.600, 1.604, 1.631 [Removed]
3. Sections 1.600, 1.604, and 1.631 are removed.
Sec. 1.601 [Amended]
4. In Sec. 1.601, paragraph (a) is removed; and paragraphs (b) and
(c) are redesignated as paragraphs (a) and (b), respectively.
[[Page 27282]]
Sec. 1.603 [Amended]
5. In Sec. 1.603, paragraphs (a) and (b) are removed; the paragraph
designation (c) and its heading are removed; paragraphs (c)(1) and
(c)(2) are redesignated as paragraphs (a) and (b), respectively; and
newly redesignated paragraphs (a)(i), (a)(ii), (a)(iii), and (a)(iv)
are redesignated as paragraphs (a)(1), (a)(2), (a)(3) and (a)(4),
respectively.
6. Section 1.620 is revised to read as follows:
Sec. 1.620 Eligibility for burial.
Section 2402 of title 38, United States Code, bestows eligibility
for burial in any open cemetery in the National Cemetery System. The
following rules in paragraphs (a) through (c) of this section state
conditions in addition to those imposed by statute. To be eligible for
burial in a national cemetery:
(a) A United States citizen who served in an allied armed force, as
provided in 38 U.S.C. 2402(4), must have been a citizen of the United
States at the time of entry on such service and at the time of his or
her death.
(b) A minor child of an eligible person, as provided in 38 U.S.C.
2402(5), must have been at the time of his or her death under 21 years
old or under 23 years old if pursuing a course of instruction at an
approved educational institution.
(c) An unmarried adult child of an eligible person, as provided in
38 U.S.C. 2402(5), must have been physically or mentally disabled and
incapable of self support.
(Authority: 38 U.S.C. 2402)
Sec. 1.630 [Amended]
7. In Sec. 1.630, paragraph (b) is amended by removing the second
and third sentences.
[FR Doc. 96-13477 Filed 5-30-96; 8:45 am]
BILLING CODE 8320-01-P
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